A Softer and Gentler ICC

The ICC, at least its face of ICC in Nairobi, is changing. Gone are the days when representatives of the ICC strode on the Kenyan stage with swagger and bluster threatening to bring order and justice. Gone are the nearly daily pronouncements of a latter day Proconsul come to put order in an errant colony. Of course every Kenyan knows that the ICC is still working on what is left of the Ocampo Six affair, but that work is being done with few headline-grabbing theatrics.  The sound and the fury have been toned down. Now and then, one reads in the newspapers that a member of the ICC team has been re-assigned with no fanfare - almost as if it is simply a rotation after a tour of duty: all perfectly routine and normal. Slowly, almost imperceptibly, the face of the ICC in Nairobi is being changed to make it softer, gentler, familiar and even home-grown.

As this change of actors after the play has started goes on, Kenyans can’t help but notice that the emerging line-up of legal minds that are being assembled to handle the cases arising from the Ocampo Six has almost a Third World appearance. An Asian expert is quietly brought in. An African legal scholar is quietly introduced.  The objective of this exercise is clear: The ICC is being repackaged to make it more palatable to Kenyans.

Fortunately, it is ultimately difficult to deceive Kenyans. Whether the ICC is given a new face or encouraged to work away from the limelight, the fundamental issue remains:  some of those who were central to the planning and execution of violence in 2007-2008 are still walking free in Kenya. The Ocampo Six list never passed a common-sense test.  Unless the ICC is willing or able to address this fatal flaw in its case, no amount of window dressing can save it. A wolf in a sheep’s skin is just as vicious. Leaving out the true perpetrators of the 2007-2008 violence will make Kenyans even more cynical than they are and it will not bring justice to the IDPs.

Credit should be given to the African leaders who initially committed the continent to support the ICC when the institution was created. But almost on its maiden voyage, the ICC floundered. In Kenya it sanctioned impunity by compiling a list, that was ‘balanced’ rather than one consisting of the masterminds of the 2007-2008 violence. We should also credit African leaders for their courage in acknowledging that the institution they thought would stop crimes against humanity on the continent has failed. Let us encourage our African leaders to complete the ongoing work of creating an African institution that can do what the ICC was supposed to do but failed.

By Githua Kariuki

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