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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.


Comment from mr;jonstone toyotta
Time: December 28, 2010, 7:20 pm

flip flopping from the August house for personal gain is what we are witnessing. I hope the souls that perished are watching as impunity and injustice reigns over their ancestral lands. Happy New Year Dr.matunda

Comment from james maina
Time: December 29, 2010, 1:47 pm

hese alignments along ethnic lines, along with the debate over Majimbo, a form of federalism, attested to the ethnic nature of Kenyan politics have been there since independence.
The same clashes also happened in other parts within the rift valley.Transamara,borabu,rongo,molo,parts of Naivasha,Narok and Kisumu where the marginalization communities are branded foreigner and forced to flee. There have been narrow esacpes, blood letting,lose of property and rape, that rarely end up in the the media.
These clashes are the small genocides that the political elites use to spar to power and clinch to the local food basket in the community.They are the individuals that say we will build a public road network, while the mean paving their driveways,Build schools while their children comfortably study abroad through looted funds,and lets have a better consitution, while they flip flop with decisions that affect the International community ie.PEV.

The naming of the Ocampo six, Hon. Kenyatta,Mr.Sang,Ruto,Kosgei and Maj.Ali is seen by many as a direct finger pointed at the 2 principals.Others claim the said proponents are key to unlocking the real players of the PEV.

Some War Lords are clearly frightened at prospects other names might spring up, given that “envelope”,had other suspects that aided in the planning of attacks and raids to the vulnerable communities within their constituencies.

Burning of churches and terming the house of the good Lord as a Cave came as a shock to me. Several kids and women are captured by foreign news casters after the Disputed results.

\My hopes is that Ocampo and team could speed up the process,and that the real culprits shall be brought to book.Kenyans and Kenya are waiting for that day that each Kenyan shall be free and safe.The new Constitution has proved to contain questionable tests that the young democracy shall go through.I am sorry to say that, we are failing, rather they are failing us in Parliament.

The 2 principles are also failing the people of Kenya by not adhering to books either.They seem to be shareholding,protecting and their communities interests for mainly political gain,as has been the story before.I hope this trend falls.Thank you everyone

Comment from victor mwachovi
Time: January 5, 2011, 1:19 am

Someone said that

…..Politicians ruin our hospitals then seek medical treatment abroad. They fail to maintain our roads, then buy foreign-made fuel-guzzlers that don’t suffer from the potholes. They destroy the education system then send their children to private schools. Now that they have ruined the courts, they should go to The Hague. Such is the level of frustration Kenyans in the Diaspora feel..

Comment from Agnetta Mwongoli
Time: January 7, 2011, 3:25 pm

Tribal favoritism is playing out! These leaders are defending their tribesmen and women within their party affiliations. They are also dishing jobs to their folks-men.The cabinet posts are also devided amongst themselves.

Comment from Ramadthan Ahmed
Time: January 10, 2011, 12:54 am

The root cause of the violence resides on the upper archeology. There were more names on that envelope.Including those that insist on laying as envelopes too.

Comment from Ricky Ogufano
Time: January 10, 2011, 1:01 am

Then the Six suspects should vacate their offices,clear their names, as I am routing on Ruto as the next president of Kenya.Give them the chance to proove their innocence and shade light to the real incinerators of the PEV.

Ocampo should do good as he did in Sudan and Rwanda.We need strong people!

I agree too that those mentioned should step aside for investigations.Give up and you shall gain it back if it belongs to you.We are here to help, and as you do that, say what you require.Whats in your heart? Do you wanna be the next president? Let us know what you think so we might assists you.


Comment from Eng. John Gathukia Gitau
Time: January 22, 2011, 11:45 am

Justice be our peace and defender so our solemn anthem goes. Peace at all costs my fellow countrymen is what we should be yearning and working for in whatever capacity or location in the world.

If the route through the Hague shall breed more hatred amongst us and another IDP exodus come 2012, then I strongly feel our new constituional arrangement should be put to the real test.And in Kenya by Kenyans. Not because our MPs are fighting for repeal and withdrawal from ICC jurisdiction, but because our country trully deserves healing.

If the south africans could do it so can we.

Reconciliation and resetlement in previously occupied lands is what we need and completely delinked from the events of 2012.
For as we take the big six to the Hague,the memories of the faces we saw brandishing machettes, spears and arrows are still fresh in our minds let alone the victims in the IDP camps.

Comment from Timothy Kinoti M’ngaruthi
Time: May 21, 2011, 9:47 am

Ocampo or no Ocampo, Kenyans need to embrace the spirit of peaceful coexistence and forgiveness. Let us get rid of all political rhetorics and chest-thumbing and live harmoniously.

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