Bull in China Shop
11/25/13, Charles Wachira
President Kenyatta, right, and Vice
President Ruto both face ICC charges
Unless there is a rethink of the powers of the ICC, there is
growing indignation in Africa against it and a conviction that it has
become another weapon of the West to persecute the continent's rulers.
During the hustings leading to national elections held early 2013,
former Prime Minister Raila Odinga told current President Uhuru Kenyatta
and his deputy William Ruto to forget the presidency, sensationally
alleging that the duo could not contest the seat because their hands
were bloodied.
Said Odinga in Kiswahili, Kenya's national language: "Huwezi kuota kuwa
rais wa Kenya na wewe una damu mkononi. Haiwezekani!" (You can't dream
of becoming the president of Kenya when your hands are full of blood.
It's impossible), the PM told delegates drawn from the Orange Democratic
Movement (ODM), the political party of which he is head.
This perennial contender for Kenya's top seat was alluding to
allegations that Kenyatta and Ruto were culpable for the pernicious
intra-ethnic violence that wracked Kenya after controversial
presidential elections results were announced late December 2007.
To drive the point home Odinga's secretariat at the time- he was a
presidential candidate himself- followed up the offensive with an 11
point caustic paid-up advertisement that ran in the local media. Of
particular note was the seventh point, which emotively roped in the duo
as having been the architects of the premeditated violence that
officially mowed down 1,133 people and led to 650,000 others, been
displaced from their land.
Praying for a reprieve for Kenyatta and
Ruto?
Partially read the advert: "Crimes against humanity are worse than
murder. Yet these suspects of crimes against humanity remain free to
transverse the country holding 'prayer meetings'- while Kenyan suspects
of the lesser crimes of murder conduct their prayers only behind the
forbidden walls of Kamiti Maximum Security Prison, often for years
before their cases are heard."
Kamiti Maximum Prison is based in Nairobi and is infamous for holding
prisoners of conscience during the reigns of the inaugural President
Jomo Kenyatta-Uhuru's old man- and his protégé Daniel arap Moi. Also
it is famously thought to be the penitentiary where "Major General"
Dedan Kimathi - leader of the Mau Mau freedom fighters, an iconic
rag-tag army that successfully brought closure to British imperial rule
(1895-1963) leading to political independence- is said to have been
hanged .Coincidentally Odinga served time here too for a suspected role
in a failed putsch in 1982 which led to hundreds of deaths. To date the
failed coup remains a sticking point in his chequered political career,
spanning three decades.
On balance meanwhile, the conflict that unfolded on December 27, 2007
lasting for over 59 days ending on February 28, 2008 was merely a
continuation of a rote occurrence that happens here during national
elections beginning in 1990 when the clamour to adopt plural democracy ,
after a hiatus of 10 years, got traction.
At the time, Moi was unpretentiously opposed to multipartyism, claiming
that the political arrangement was alien to the African person and
cautioned that if embraced the arrangement would trigger ethnic strife.
Turned out that Moi at the time was a quintessential African Big Man who
brooked no challenges to his reign and those individuals who dared to
cross swords with him lived to tell terrifying tales.
The ignominy of his 24-year rule reverberates to date with the
phenomenon of intra-ethnic violence during the election cycle
underlining how deep Moi's primordial swagger continues to influence the
national psychic, ten -years after grudgingly exiting from power.
For example early this February the Kenya Human Rights Commission
(KHRC), a quango, produced an illuminating report entitled: Why the
Senseless Inter-Ethnic Conflicts in Kenya? and reported thus: "In 2010,
concerned by media reports that communities were re-arming, KHRC
embarked on a research to ascertain those claims and produced the report
in 2011 titled 'Recurrent Ethnic Violence and Claims of Communities
Arming Ahead of the 2012 General Elections.' At the time the report was
produced the elections were expected to take place in August 2012 as
per the provision of the Constitution of Kenya, 2010. This report
details what appeared to be an arms race despite the events of 2008
being fresh in the minds of most Kenyans. What is baffling is that over
the time, inter-ethnic conflict seems to be popping up everywhere.
Equally puzzling is that nobody has been arrested and prosecuted in all
these conflicts that often leave a trail of destruction and death. The
question is, of what benefit are these conflicts to anyone? More
importantly, who is fanning these clashes? Despite police reforms and
reforms in various government bodies, why isn't there any real action to
deter the perpetrators of these conflicts?"
Truth is, ethnic violence in Kenya during election periods has been a
norm rather than an exception and some would argue, that the world has
just arguably become conscious of the gravity of the problem. Yet the
remnants of this ugly problem are ubiquitous.
In the '90's the country was awash with information that Moi's henchmen
had surreptitiously imported poisoned arrows complete with bows from
Romania when that country was under the iron grip of Nicolae Ceausescu, a
ruthless dictator who befriended the Kenyan leader and even got an
invite to the State House, Kenya's seat of power. Ceausescu and his wife
Elena were shot dead by a firing squad on the Christmas of '89 for
committing mass murder in their country.
The arrows were apparently put into effect in the North -Rift region of
Kenya where armed goons coalescing around the Moi-cabal carried out one
of the first choreographed but unresolved genocide in this part of the
world.
ICC chief prosecutor Fatou Bensouda:
Has ICC become a tool of the West?
Indeed International Rights groups, amongst them Amnesty
International, have chronicled these atrocities but the justice system
in east Africa's biggest economy has somewhat skirted this issue to the
dismay of the citizenry. Reason for this inaction, many believe is
because the perpetrators and sponsors of the violence are normally
well-heeled individuals with deep political connections.
And that's the reason sequel intra-ethnic violence routinely finds
succor here, metamorphosing over time to become the country's bugbear
during elections. And exacerbating the scourge further has been the
carefree attitude of officialdom that plays dumb to the sore specter of
Internally Displaced People (IDP), some of whom have been out of their
land since the early '90s.
A feeble attempt to address the causes and effects of these happenings
took place for the first time in 2008 when an impotent Truth, Justice
and Reconciliation Commission (TJRC), ostensibly styled along the
lines of the life-changing South African TJRC was set up.
But even before it got to work the commission was rocked by internal
conflicts as the chairman, Bethuel Kiplagat, a former Moi -insider
found himself on the receiving end of accusations that he had a role in
the skirmishes that targeted members of Kenya's Somali community in the
early 80s, an accusation he denies. .
In August 2013 the Commission wound up its business following a
publication of its report which had little impact and little wonder that
Kenyans were not reassured that the train of human rights abuses would
halt.
Then the IC C happened and for the first time Kenyans were optimistic
that never again will they ever witness ethnic violence again on the
scale that Kenyans had endured over time. It was assumed that an
independent justice system unencumbered by the influence of local
politicians would come to play.
Then on December 15, 2010, Luis Moreno Ocampo then the Prosecutor of
the ICC named six suspects, colloquially known as the Ocampo Six who
included a retired Major General; a former Head of Public Service and
Chairman of the country's National Security Advisory Committee; a former
Minister of Industrialization who were all later acquitted by the
court. But not so for current President Uhuru Kenyatta; Deputy President
William Ruto and a Radio journalist Joshua Sang, who remain indicted by
the ICC.
The court has, however, found itself in a quagmire since a perception
emerged that western nations led by the US were subtly opposed to the
election of Kenyatta for the country's top seat.
To fire the first salvo was Johnnie Carson, the United States top
diplomat for Africa and a former US ambassador to Kenya, who despite
alluding to the fact that Kenyans were responsible for electing their
leaders added a caveat: "choices have consequences." Noting that "we
live in an interconnected world," Carson suggested that the choices
Kenyans make in the election would have repercussions internationally.
"People should be thoughtful about those they choose to be leaders, the
impact their choices would have on their country, region or global
community," he told reporters back in the US.
Asked about US attitudes toward Kenyatta specifically, Carson said:
"Individuals have histories, individuals have images, and individuals
have reputations. When they are selected to lead their nations, those
images, histories and reputations go along with them."
That unsolicited advice seemed to have had an opposite effect,
emboldening a sizable portion of the population to queue behind the
Uhuru- for -President- brigade.
In the polls held in March 2013, Uhuru, 51 and Ruto, 46, reached a
political coalition that just managed to push Odinga's ODM into the
wilderness with a wafer thin majority of 50.07 percent of the popular
vote compared to Odinga's 43.31 percent of the vote. The constitution
requires a 50 percent plus one vote for an outright win.
The polls also witnessed one of the biggest political fallouts in
Kenya's political history when Ruto decidedly opted to become Uhuru's
running mate. It was not lost to close Nairobi watchers that by making
the move Ruto had irreparably ended Odinga's chances of ascending to the
country's top seat.
In the 2007 polls Ruto, apparently played a critical role in marshalling
members of his Kalenjin ethnic group, numerically the third largest in
the country, to vote as a bloc for Odinga in 2007. But the two fell out
over the issue of the ICC with Odinga accused by allies of the Kenyatta
-Ruto brigade of having a hand in the tribulations of the two.
Exacerbating the feelings were the incriminating utterances by Odinga
towards the build up to the election that somewhat created the indelible
image of him being a vindictive politician.
Understandably both Kenyatta and Ruto have since publicly stated that
if anybody ought to be hurled to The Hague, Odinga ought to be leading
the pack, based on the fact that when the violence happened, the latter
was a presidential contender together with Mwai Kibaki and the two
therefore ought to be liable for the violence that occurred.
For the first time in the Kenya hearings, then chief prosecutor Ocampo
led the cross-examination. He asked Kenyatta whether he thought the then
opposition leader Odinga, had political or criminal responsibility for
the violence because his defense placed Odinga at the center of the
bloodshed.
"I will not say that he was criminally responsible because I have no
evidence of him supplying arms," Kenyatta said. "I am claiming had he
agreed to follow proper due process and go to court instead of calling
for mass action, violence would not have broken out," said Uhuru.
Kenyatta and Ruto are facing four and three counts of crimes against
humanity, respectively, in connection with the 2007-2008 post-election
violence in which 1,133 people were killed and 650,000 displaced.
According to the Electoral Commission of Kenya (ECK), the body charged
with conducting the polls but has since been disbanded for badly
bungling the exercise, Kibaki emerged the winner with a 47 percent of
the popular vote while Odinga turned out second bagging 44 percent.
Of interest is that despite the ECK results the chairman of the ECK,
Samuel Kivuitu, now deceased, bizarrely contended that it was impossible
to tell who between Kibaki and Odinga won outrightly, further
emboldening the belief that the poll results were cooked.
The most severe episode of the conflict unfolded over 59 days between
December 27, 2007, the election day and February 28, 2008. A political
compromise, hammered out by the two protagonists led to a signing of a
national accord, following mediation efforts by the African Union Panel
of Eminent African Personalities chaired by Kofi Annan, former United
Nations (UN) secretary general.
But the schism witnessed in the elections was resurrected by the ICC
cases with local warring factions taking predictable positions with eyes
trained on the 2017 polls while the international community was
disparate in its opinion.
With certitude President Kenyatta has since become a fervent crusader
for upending the ICC by giving the impression that the court is a star
Chamber, created by imperialists and therefore is archaic. Said he
during an extraordinary session of the Assembly of Heads of State held
on October 12 in Addis Ababa, Ethiopia.
"Western powers are the key drivers of the ICC process. They have used
prosecutions as ruses and bait to pressure Kenyan leadership into
adopting, or renouncing various positions. Close to 70 percent of the
Court's annual budget is funded by the European Union.
"The threat of prosecution usually suffices to have pliant countries execute policies favourable to these countries.
"Through it, regime-change sleights of hand have been attempted in
Africa. A number of them have succeeded. The Office of the Prosecutor
made certain categorical pronouncements regarding eligibility for
leadership of candidates in Kenya's last general election. Only a
fortnight ago, the Prosecutor proposed undemocratic and unconstitutional
adjustments to the Kenyan Presidency. These interventions go beyond
interference in the internal affairs of a sovereign State. They
constitute a fetid insult to Kenya and Africa. African sovereignty means
nothing to the ICC and its patrons. They also dovetail altogether too
conveniently with the warnings given to Kenyans just before the last
elections: choices have consequences.
"This chorus was led by the USA, Britain, EU, and certain eminent
persons in global affairs. It was a threat made to Kenyans against
electing my government. My government's decisive election must be seen
as a categorical rebuke by the people of Kenya of those who wished to
interfere with our internal affairs and infringe our sovereignty."
Indeed even within western capitals opinion critical to the ICC has
grown and seen as leading the chorus is former US Assistant Secretary of
State for African Affairs Jendayi Frazer.
"I think that people confuse the ICC with justice. I don't care what the
ICC decides in the Kenyan case, there will be no justice. There is no
justice when it's a political case. It was a case brought by politicians
essentially failing to act because it was politics," she says, adding
"If somebody wants to feel empty justice, go right ahead and believe
that the ICC represents that for you. The ICC is a broken institution."
Frazer said that the Obama administration should not peg US relations
with Kenya on the ICC cases because Washington deals with countries with
major outstanding issues. She cited Russia, which she said had
committed atrocities in Chechnya, and China's feud with Tibet and said
that the US has its own problems in places like Iraq.
"Who really are we? We are not in fact a party to the Rome Statute. Why
would we undermine our national strategic interests in terms of the
relations between the US and Kenya because of a very weak case which
should not have been before the ICC in the first place?" she asked.
In addition a former chief prosecutor of the ICC has condemned its cases
against Kenya's leadership warning that the indictments could damage
the fledgling international justice system. David Crane, the US lawyer
who built the case against Liberia's former President Charles Taylor
said his successors at The Hague had ignored political realities in
pursuing the Kenyan prosecution, which he said "could be the beginning
of a long slide into irrelevance for international law."
"I would never have indicted or gotten involved in justice for the
Kenyan tragedy," said Crane, a former chief prosecutor of the special
court for Sierra Leone, a precursor to the ICC. "It's placed them in a
situation where they are damned if they do or damned if they don't."
Under the Argentinean lawyer Luis Moreno-Ocampo, the prosecutor's office
pursued high-profile African leaders, including Sudan's Omar al-Bashir -
who has ignored its warrant - and a number of alleged warlords in the
Democratic Republic of the Congo.
Crane said Moreno-Ocampo had a "political tin ear" and had been overly ambitious in his indictments.
And as further proof of how Africa feels about the ICC, the African
Union has since passed a resolution calling for immunity for all serving
African Heads of State.
In addition Kenya's Parliament has voted to withdraw the country from
the ICC and has urged the government to take steps to remove the country
out of the Rome Statute that established the ICC.
Kenya will become the first country to revoke its membership of the
ICC if the resolution to suspend any links, cooperation and assistance
to the court is executed.
The process will take about a year to complete. ICC officials have
cautioned that the action has no bearing on the trials of President
Kenyatta and his deputy Ruto. MP's of Kenya's governing coalition
Jubilee have said that the ICC was simply pursuing a neo-colonial
agenda. MPs justified their calls for the cases to be tried at home by
invoking the sovereignty and independence of the country
Peter Kagwanja, a former Fulbright scholar at the University of Illinois
remembers that the first time he paid serious attention to the ICC was
in 2004, when officials in the foreign affairs ministry asked his advice
on whether Kenya should accede to US demands not to hand over any
American citizen to the ICC. Kagwanja says the attitude of the United
States was so high-handed that "I advised, 'tell America to go to
hell.'"
During the reign of Kibaki, he, advised the government on how to deal
with the Kenyan ICC cases. He tried unsuccessfully to slow down the
process, a push that included lobbying members of the UN Security
Council to request a delay. Kagwanja believes the ICC did not have
sufficient grounds to get involved in Kenya and that, by doing so, it
has hampered efforts to strengthen local institutions, including the
courts. "We have a very strong faith in our ability to build our own
institutions," Kagwanja says. The ICC case may have sped up Kenyans'
battle against impunity, he says, but it has come at the cost of
"national sovereignty and dignity."
Taking a different view is Mugambi Kiai, a Harvard-trained lawyer and
the Kenya program manager for the Open Society Foundation's Eastern
Africa Initiative. Rather than hampering efforts to build strong
institutions, he says, the ICC has actually aided them by showing that
anyone-even Uhuru Kenyatta-can be put in the dock. He cites several
examples of challenges he thinks would never have happened without the
ICC, including a case brought by members of the Samburu community, who
claim that land sold by former President Daniel arap Moi actually
belongs to them, and legal efforts to remove Deputy Chief Justice Nancy
Baraza for threatening a security guard at a local mall. "Boldness is
like education," he says. "Suddenly you do everything differently. There
is a new boldness germinating, and it will become infectious."
But Ugandan President Yoweri Museveni has made a scathing attack on the
ICC saying "I want to salute the Kenyan voters on one issue - the
rejection of the blackmail by the International Criminal Court (ICC) and
those who seek to abuse this institution for their own agenda."
But Kagwanja paints a much darker picture, claiming that the ICC has
polarized politics and worsened hostilities between communities. When
the ICC confirmed charges against the four Kenyans last September, he
says, "Things fell apart and in a huge way. Central Kenya home to
Kenyatta became radicalised including within Nandi (home of Ruto).
The AU during its last meeting made a clear pronouncement. Kenya is a
victim of "politicised prosecutor whose powers are unchecked can become a
highly destabilizing and dangerous factor in matters of peace and
security."
But eminent African bishop, Desmond Tutu is of a contrary view. In an
op-ed titled, Is Africa Seeking a License to Kill?, he lambasts those
seeking to obliterate the ICC.
"Those leaders seeking to skirt the court are effectively looking for a
license to kill, maim and oppress their own people without consequence.
They believe the interests of the people should not stand in the way of
their ambitions of wealth and power; that being held to account by the
I.C.C. interferes with their ability to achieve these ambitions; and
that those who get in their way - the victims: their own people - should
remain faceless and voiceless"
