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Moreno Ocampo, the ICC and us Kenyans

By Matunda Nyanchama

Toronto, Ontario

December 27, 2010

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International Criminal Court (ICC) prosecutor, Moreno Ocampo, has named six Kenyans in relation with the 2008 post-election violence (PEV). The six, Ocampo says, are the most culpable with respect to the mayhem that followed a bungled election in 2007. They are Eldoret North MP William Ruto, Finance Minister Uhuru Kenyatta, Industrialization minister Henry Kosgey, Public Service boss Francis Muthaura, Kass FM journalist Joshua arap Sang and Postmaster-General Hussein Ali.

As many of us expected, this action has generated a lot of dust, which may take a long time to settle. And this could be due to two reasons: (a) the action has come rather quickly and (b) the prominence of the personalities named among the six.

A while back, the Kenyan parliament had a chance to set up a local tribunal to try those seen to have been behind the PEV. However, parliamentarians voted to send potential culprits to The Hague. At the time, some of us argued that The Hague was dangerous option for us as a country and a people. It suggested that we cannot manage our affairs as a nation and that the actions undermined our institutions (especially the judiciary) and placed us in bad stead in the world of nations. It is NOT an action to be proud of as a Kenyan.

Nonetheless, given the degree to which the judiciary had been disparaged and undermined, especially following the disputed 2007 elections, one can infer that most Kenyans, including parliamentarians, did not have confidence that a local tribunal could deliver justice.

There may be others that supported The Hague Option for other reasons. There are those that reasoned that the ICC process could take years to conclude and that ICC did not have the capacity to realize successful conviction.  I suppose they hoped that culprits would in the end get away scot free! For instance, suppose the naming and indictments were to come after the 2012 elections and find that an alleged perpetrator has won the presidency, it would then be nearly impossible to try the person. Moreover, they perhaps reasoned that the ICC could not realistically gather evidence that could warrant conviction of suspects.

Those that opposed the local tribunal for these reasons may have been shocked at the speed with which the process has moved. The naming of suspects came sooner than they expected and their indictments could come with the same speed.

On the matter of evidence, it is NOT accidental that some of those named have turned to rubbish the characters of the potential witnesses and hence the associated evidence.

The second reason for much furor and so much dust is that Ocampo’s list includes prominent Kenyans, some of them being presidential contenders, and people seen to be leaders in their communities. Among these are 2012 presidential hopefuls: Deputy Prime Minister and Minister of Finance, Uhuru Kenyatta and suspended Higher Education Minister, William Ruto. The two are said to have formed an alliance, alongside Vice-President Kalonzo Musyoka, to put one of them in State House in 2012. Their naming puts a spanner in the works and could be fatal to their 2012 plans.

There is more.

It is typical for Kenyans politicians, when under siege, to turn to their ethnic bases to claim that “their people” are being targeted. It is easy to suggest that both Kalenjin and Kikuyu communities are being targeted to be out of the running for State House in 2012, for reasons that both Uhuru Kenyatta and William Ruto are seen as their “community torch bearers” for presidency!

Seen in this perspective, whole communities may feel “robbed” by Ocampo’s action and possible indictment and conviction of “their leaders”.

It is in this respect that actions that have followed have been interesting. A good example is parliament’s recent vote to pull out of the Rome Statute and repeal the associated International Crimes Act of 2008.

Some of those that supported The Hague Option did a shameless about turn, arguing that Kenya is a sovereign nation and could solve its our own affairs internally. They now prefer a local tribunal!

One wonders whether they ever think through their actions, both short-term and long-term. In rejecting the setting of a local tribunal in the past, MPs do not appear to have reflected on the long term implications of their action. Indeed, even the vote to pull out of the ICC process is laden with emotion with little thought of consequences beyond the vote.

Clearly the August House has lost direction! It has lost sight of its role in entrenching justice and ending impunity. MPs do not seem to be interested in ensuring justice is done! Their commitment to ending impunity is questionable. The latter is NOT a major surprise to many given that many MPs are beneficiaries of the same undesirable impunity!

Moreover, it is unlikely that parliament’s action can stop the process Ocampo as set in motion. The vote with respect to the ICC is an action that has come too late!

Further, as demonstrated by recent polls, Kenyans overwhelmingly support Ocampo and the indictment of the six. It underlines their hope of getting justice and perhaps smacking impunity on the face!

We must remember that many Kenyans committed atrocities during the PEV and that the naming and impending indictment of the six is not the end of the road towards justice in the 2008 PEV.  It is important that the local justice system brings to book all culprits of the PEV.

Meanwhile, urgent measures should be taken to address the issues of internally displaced persons (IDPs) who have remained in temporary camps for close to three years. It is a shame that some leaders see the urgency in raising funds for lawyers to defend the accused even when they have done little to address the plight of the IDPs.

A little credit goes to the president for his small gesture of handing out food to the IDPs over Christmas. However, that is too small a gesture. What IDPs need is resettlement so that they can go about doing their own things and better their lives. Kenyans need the IDPs resettled so that they can be more productive than they are currently. The food handout is a good public relations exercise akin to “giving someone fish” rather than empowering them to fend for themselves.

In Ekegusii we have a saying that “ensinyo mana kwoga, n’abamura etabwati”, simply saying that without leadership and defence of one’s “borders” one territory would always besieged by others. Kenyans are subject to ICC because we willed so; we will remain subject to the will of others because of our failure to solve our own problems internally. It is important that we address this matter in the new dispensation.

Finally, we Kenyans need to start examining our values and how to ensure justice happens to all, regardless of their station in life. It is a pity that many communities place their support and hopes in many of those that could be culpable of PEV-related crimes.

The values we should seek in leadership and how we realize that as a nation is a matter to reflect on as a nation. Those are values that must be anchored in justice, equity, and fairness to all. Too often, leaders we elect have a vague demonstration, let alone appreciation and understanding, of such values.

Happy New Year!

Dr Matunda Nyanchama is an ICT Professional & a past president of the Kenyan Community Abroad.


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