Kenya shouldn’t try to block the ICC
Over 1,300 Kenyans died and more than half a million others were displaced as a result of the post-election violence that erupted following the disputed results of the 2007 presidential poll. For more than five years, the victims have waited for the people responsible for these atrocious acts to be held accountable. The commencement of […]
Over 1,300 Kenyans died and more than half a million others were displaced as a result of the post-election violence that erupted following the disputed results of the 2007 presidential poll. For more than five years, the victims have waited for the people responsible for these atrocious acts to be held accountable.
The commencement of cases against three Kenyans indicted for crimes against humanity by the International Criminal Court this year is both significant and symbolic for the victims. But it is now clear that electing two of the accused people to Kenya’s presidency and deputy presidency has directed government policy towards frustrating the ICC process rather than focusing on justice for victims.
On September 5, just days to the opening of the trial of Deputy President William Ruto, Kenya’s parliament passed a motion to withdraw from the Rome Statute, which created the ICC. While this has no legal bearing on the current cases, it suggests a worrying trend for the future, given Kenya’s pattern of election violence.
Kenya opted for the ICC process. Former President Mwai Kibaki and Prime Minister Raila Odinga made a commitment to support the ICC, in line with Kenya’s national and international obligations to ensure accountability for egregious atrocities. Even before he was summoned to appear, Deputy President Ruto personally visited the ICC in The Hague, displaying his support.
Kenya’s Commission of Inquiry into Post-Election Violence or Waki Commission recommended establishing a local judicial process to deliver justice for victims, but the recommendation was shot down in parliament by MPs who cited a lack of trust in the judiciary. Who can forget their clarion call, “Don’t be vague, it’s The Hague!” President Uhuru Kenyatta and Deputy President Ruto were members of this Parliament. This response, coupled with the fact that the Kenyan authorities cannot show any credible investigations or prosecutions of those in leadership positions for the crimes committed during that post-election period, means that the ICC remains the victims’ greatest hope for justice. Further, the Rome Statute recognizes the centrality of victims in the judicial process, and ensures that their voices are heard and that they can seek reparations.
The fact that President Kenyatta and Deputy President Ruto are set to appear before the ICC for trial sends a strong message that no one is above the law. This is significant especially against the backdrop of Kenya’s entrenched culture of impunity, with people in power using their positions to circumvent or frustrate the course of justice. The culture of impunity was mostly responsible for electoral violence in 1992, 1997, and again in 2007.
The ICC process has survived political and legal hurdles instigated by the Kenyan government, aimed at frustrating the cases. The government challenged the ICC’s jurisdiction over the cases, but lost the challenge when the judges could find no evidence that national investigations of those named by the ICC prosecutor were taking place. More recently the government has sought support at the African Union and the UN Security Council to end the ICC cases.
The 12th Summit of the African Heads of States and Governments passed a resolution in May calling for a referral of the cases back to Kenya, in spite of the fact that the AU was actually instrumental in the Kenyan cases.
The AU’s Panel of African Eminent Personalities led by His Excellency Kofi Annan played a significant role in mediating the National Dialogue and Reconciliation Accord that led to cessation of the violence, formation of a coalition government and establishment of the Waki Commission. The commission gave Mr. Annan its report and the list of people, recommended for investigations and prosecution by the ICC, if Kenya failed to set up a credible tribunal to try the perpetrators.
The efforts to pull out of the Rome Statute and the attempts to co-opt the AU contradict the lessons learned from the 2007-08 post-election violence. Indeed, while Kenya’s political elite persists in its revisionary narrative that the ICC is inimical to national peace and that what the country needs is to “just forgive, forget and move on,” justice and accountability are the foundations of sustainable peace and development for any state and society. Our experience during the last 50 years have proven that a failure to fully address the past only perpetuates a culture of impunity, the very basis of the crisis of governance and development crisis in Africa and other developing countries.
Justice delayed is justice denied! The 2007-2008 victims have waited for more than five years. It is time for the trials to begin! The ICC must deliver on the victims’ expectations that it will ultimately offer an opportunity for the truth about the post-election violence to be unraveled in an impartial judicial process.
Davis Malombe is deputy executive director of the Kenya Human Rights Commission. The article was first published by the South African Mail & Guardian newspaper.