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Moreno Ocampo & ICC in Kenya – Cheer with Caution!

Matunda Nyanchama

Toronto, Ontario, Canada

November 8th, 2009

Last week, International Criminal Court (ICC) Prosecutor, Moreno Ocampo, arrived in Nairobi to a warm welcome by many in the country, including civil society. At last, many Kenyans hope, there may be some action on impunity and especially on those that perpetrated violence in the last elections. Such action, however, symbolic would be of substantial psychological comfort for many a Kenyan.

Ocampo has been the talk of town since the release of the Waki Report on post-election violence and a series of other reports from human rights organizations in the country. The report recommended the creation of a local tribunal to try perpetrators of violence, and failure to do so would lead to the “Hague Option” where the ICC would try violence culprits. The Kenyan parliament rejected the special local tribunal option to try perpetrators of violence. By doing so, it opted for the Hague Option.

Meanwhile, there have been attempts to have the recently created Truth Commission handle matters of post election violence (PEV). These attempts have faced a lot of resistance from the public and civil society. Kenyans appear committed to the Hague Option.

The moves, twists and turns following the release of the Waki Report may be the reason Kenyans are cheering. The frustration they have faced, in many Kenyans’ eyes, may at last ease! And may be, just may be, justice might done at last, despite the delay. In this respect, Ocampo and the ICC offer hope of the last resort in the search for justice against impunity in a matter that nearly tore the nation apart.

Whether this will be achieved remains to be seen, especially considering the protracted and arduous ICC process. It is a case of justice delayed; and no matter the end result, justice denied for the Kenyan people.

Two major points are worth making: Kenyans’ loss of confidence in local instruments of justice and the country’s business becoming “everyone’s business”.

Erosion of confidence in the nation’s institutions has been advancing over a long time. It includes fuzzy outcomes from such scandals as Goldenberg, the murder of former foreign minister Robert Ouko and the Attorney General’s generous termination of cases, especially private prosecutions.

Confidence in the nation’s institutions was, perhaps, hit hardest by the failure of the now defunct Electoral Commission of Kenya (ECK) to satisfactorily conduct the elections. It was the height of incompetence for the disgraced ECK Chairman, Samwel Kivuitu, to say he could not tell who won the presidential elections!

In the lead up to the elections there had been back and forth tussling between Party of National Unity (PNU) and Orange Democratic Movement (ODM) parties over ECK appointments. ODM expressed suspicion of the men and women appointed by the president to the commission; they were, however, supportive of the reappointment of the now disgraced ECK chairman Samwel Kivuitu. That the disgraced chairman failed in his duties was a major setback in the confidence in local institutions to carry out their mandate.

What followed eroded this confidence further!

The aggrieved party, ODM, refused to challenge the elections as provided by the law citing their lack of trust of Kenyan courts. In the judgement, mass action was preferable and (again in their view) a more effective means of forcing reversal of outcomes announced by ECK. This stalemate, in many ways aggravated the violence in the country; the violence that is the basis ICC charges for perpetrators.

It is no wonder that many Kenyans, including law makers, see ICC and Ocampo as a better way out than establishing a local tribunal. ICC, many Kenyans hope, would be more just, less corruptible and less influenced by the debilitating ethnic disease that is continuously undermining the national fabric.

Kenyans may be cheering Ocampo. It is sad, even as many are not decrying the loss of ability to manage our own internal affairs! Our country’s business has become everyone’s business. And the international community is having a field day beating us to order, and for the reason that we have failed to manage our affairs.

Failure to manage our own affairs is perhaps underlined by the fact that the country’s issues have become “everyone’s business”! This is especially so since the debacle of the 2007 elections.

The US and other western powers are said to have given orders that led to the power-sharing arrangement between ODM and PNU. Since then, Kenya has remained in the eyes of the international community, especially on leaders’ commitments to the Serena agreements, including Agenda 4. Kofi Annan, former UN Secretary General, remains a household name; so also of Ocampo as is the US ambassador to Kenya.

Persistence orders led Prime Minister, Raila Odinga, to affirm that Kenya has heard the international community and would take its time to pursue its agenda. He retorted that Kenyans were not young children to be continually lectured on how to manage their own affairs.

More recently, foreign minister, Moses Wetangula, has decried this foreign interference. Responding to the US visa ban on AG Amos Wako, the foreign minister is quoted as saying that “… it is with regret that an assistant minister of a friendly country walks into our country uninvited, makes fairly unacceptable and reckless statements and then leaves.

Such interference comes with reasons. It is not necessarily because these foreigners care for Kenya as much as they claim, but because chaos in Kenya would imperil these foreigner’s interests. As such, let’s cheer with caution!

In Gusii we say that “ensinyo mana gochaywa, n’abamura etabwati”, which roughly translates to: constant interference as a “tribe’s” borders underlines the lack of warriors to protect the tribe! Our failure of leadership and inability to put our things in order gives others a reason to interfere.

The question is what Kenya would emerge from this interference that will be shaped largely by these foreign interests. Indeed, the question is whether Kenyans are participating enough in shaping this future to ensure the outcome of the Kenya that the Kenyans need.

Let’s all cheer Ocampo for now. Indeed, let’s urge him to take speedy action to bring to book the perpetrators of violence. And let this be a lesson for all and sundry that one cannot get away with impunity of the kind we saw in the 2008 post election violence.

We should not be carried away, however! Instead, we should cheer with caution. In the same breath we should worry about our long-term ability to manage our own affairs. And the question would be: what do we need in place for that to happen.

A few people have suggested that the constitution and associated reforms would be the solution. However, as important as just and fair laws may be, there is a need for a culture of Kenyan (rather than ethnic) nationalism, respect for the rule of law and learning to “live and let live”. We need to understand that we are in the same boat called Kenya and that we have a duty to take care of this wonderful country so that it can rise to its potential. All this cannot be achieved without leadership that can re-engineer the nation, rearranging issues of the nation to get the best out of our multi-ethnic diversity and our God-given heritage (land, flora and fauna). And it requires a new way of running the country’s affairs:The Third Way!

True national pride should be in our ability to resolve our problems amicably, based on the justice, equity, fairness and the rule of law; it is NOT in foreign instruments (e.g. the ICC) or foreign governments (e.g. the US) to manage our affairs. And that requires leadership. Indeed, as I wrote back in 2000, the greatest challenge Kenyans face today and in the future is that of leadership.

Dr. Matunda Nyanchama, an information security professional, is the past and founding president of the Kenyan Community Abroad (KCA); he can be reached at Matunda@matunda.org.

© 2009 Matunda Nyanchama

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