Two articles in the March 17, 2013 Sunday Nation are of interest. The first is ‘ICC Has Fallen from High Ideals of Global Justice Accountability by Jendayi Frazer, former US Assistant Secretary of State for African Affairs. The second one is ‘Why Muthaura’s ICC Case Collapsed’ by Emeka-Mayaka Gekara.
Ms. Frazer uses many points to show that local and Western interests have tried to use the ICC to achieve their objectives in Kenya thereby damaging the ICC perhaps irreparably. These interests have failed in their quest of redesigning Kenya’s political landscape and future, not because of the outcome of the elections, but because their attempt to use the ICC placed the court outside its brief according to the Rome Statute. If one were to build on Ms. Frazer’s thoughts, one might say that after this fundamental error in judgment of letting itself to be manipulated, the ICC is now faced with the monumental task of saving itself from irrelevance.
Emeka-Mayaka Gekara looks at the collapse of ICC’s case against Mr. Muthaura which appears to have occurred because key witnesses either recanted their statements or turned out to be paid agents of political schemes. More damaging is the revelation that the ICC has known that its case had collapsed for quite some time but continued to grand stand in Kenya’s political space right through the end of the country’s historic political season. Even a last-minute effort to save the case by relying on evidence culled from foreign surveillance of Kenyans going about their official duties with its Orwellian implications has been abandoned.
Taken together, these articles remind us of the high hopes that many Africans placed on the ICC as they signed the Rome Statute: here was an institution that would come to the rescue of justice whenever national institutions are unable to deal with crimes against humanity due to corruption and a culture of impunity and privilege. Yet the ICC has shown itself to be vulnerable to the same forces.
In Kenya the ICC failed almost right from the start by charging a ‘balanced’ list of people for the post-election violence of 2007-2008. Balance is politics. To arrive at a balanced list of people to charge means that some individuals who should be on the list based on the evidence must be removed. Simultaneously, people who should not be on the list must be introduced gratuitously on flimsy evidence. How could the legal minds within the ICC not see that by accepting the formula of charging a balanced list of people the court had gone into the business of granting impunity on the one hand, and being political hatchet men and women for the well-healed, on the other? And while we are on this note, how could the legal minds within ICC even contemplate accepting evidence collected by one nation monitoring the movements of the officials of another nation, disregarding the horrifying vistas such activities open especially in the dawning world of surveillance devices with features of a small bird?
Once the Ocampo list was made public, many Kenyans were amazed because the list did not accord with their experience during the 2007-2008 elections. It bears repeating that those who organized, financed, orchestrated, and carried out the violence are otherwise brothers, sisters, uncles, fathers and mothers, relatives, friends and social acquaintances of many a Kenyan. The people responsible for the violence and their agents are otherwise Kenyans. Through this social and political interconnectedness, most Kenyans have a common sense notion of those who were responsible for the violence in 2007-2008 and on that basis, there is something odd, grotesque, almost comical about the list of people the ICC charged. As a result, other than those who hoped to profit from this political theater to some degree or another, many Kenyans have refused to accept the list and indeed the legitimacy of ICC itself. And they have made their views known, right down to the ballots, ignoring the daily drumbeat of ‘consequences’ and ‘charged with crimes against humanity’! The balanced list was an outrage. What has won the elections in Kenya is an alliance of the outraged. This alliance seems likely to win repeatedly, if there are re-runs. Kenya is moving beyond the siege.
It is a shame that it has come to this, but it is perhaps not too early for the ICC to consider withdrawing from Kenya, leaving the country, not with the bluster and swagger of Sheriff Ocampo, but with the dignity of a good institution that was given a bad case.
By Mwangi Wachira
The views expressed on this op-ed/blog are solely those of the author and do not reflect the opinions of Mwakilishi News Media, or any other individual, organization, or institution. The content on this op-ed/blog is not intended to malign any religion, ethnic group, club, organization, company, or individual. The author himself is responsible for the content of the posts on this op-ed/blog, not any other organization or institution which he might be seen to represent. The author is not responsible, nor will he be held liable, for any statements made by others on this op-ed/blog in the op-ed blog comments, nor the laws which they may break in this country or their own, through their comments’ content, implication, and intent. The author reserves the right to delete comments if and when necessary. The author is not responsible for the content or activities of any sites linked from this op-ed/blog. Unless otherwise indicated, all translations and other content on here are original works of the op-ed/blog author and the copyrights for those works belong to the author.