Saturday, April 9, 2011

How Kenya turned up at the ICC in The Emperor's New Clothes

The first formal appearance of Kenyans before International Criminal Court was bound to trigger different emotions. There are those struck by shame that Kenya is now in the company of disgraced nations that have, thanks to failed judicial systems and atrocious records of crimes against humanity, served as pick-up stations for ICC trans-world buses.

ICC knocked on our door after getting an invitation letter from the President and the Prime Minister. They invited them because many Kenyans had no faith in their judicial system and distrusted the weak-kneed police, which was also part of the mess. We also were buoyed that the judges would neither be Kalenjin, Luo, Kikuyus nor Luhya. But today, albeit too late, special tribunal is gaining currency

The fact that three years later we wanted to pull out, delay its process or derail it altogether, is immaterial. Whether the country healed or not, we had shown we were comfortable with a legal process over which we could pick the policeman, lawyer and judge. That is what Kibaki told the world when he handpicked a nominee for Chief Justice, Attorney General and Director of Public Prosecutions while en-route to the African Union Summit in Addis Abba to claim ICC should leave Kenya alone because it now had an honourable court system, hallowed home-grown investigators and a saintly man at State House, whose first and second names are ‘Beyond Reproach’ and ‘Integrity’. His choice for Vice-President Kalonzo Musyoka — for obvious reasons — was stomping African capitals lobbying for deferral. Raila Odinga, understandably, was left out because they did not trust him. It turns out the world community may have given Kibaki a hearing if they were reading from the same script.

You see, Kibaki and his team stumble often because they believe now that we are in peacetime; they have devalued power sharing so much that the rest of the world should go by their terms – not the commitment they signed before Kofi Annan. Also, most regretably, a lot seemed to have depended more on our individual political inclinations and personal leadership preferences than the principles of law. There are also those who felt the appearances may lead to possible recast of the image we have enjoyed as Africa’s island of peace and cornerstone of political stability. In the six, we literally stood naked before the international community to be audited for what took place in 2008.

If we had fixed our institutions of governance before the sham elections in 2007, which were muddied by President Kibaki’s executive hand, we probably would not today be clients of ICC, upon whom foreign lawyers have struck a gold mine. Their siphoning pipe goes right into our Treasury.

Because of playing money-business with governance, we are like a bunch of monkeys one of which has a bell tied to the neck. The more the one with ringing bell runs towards his colleagues for ‘help’, the noise scares the others and they run further away. But others run towards him, not to help, but to try and decipher what it is that they have.
We are after all monkeys, the difference being only a few have bells on the necks. I suspect some of those at The Hague were driven by curiosity, not will to look sympathetic to the suspects, over what will happen to them, and also the prospect of political capital by seeming to have stood with them. There are of course those whose reaction was to ask what became of the victims of post-election killings, dispossession and displacements. They may be few because many look like they have accepted the victims were the unfortunate pawns or sacrificial lambs in the game and altar of politics. But for others, the day may just have raised hope the victims may finally get justice and the suspects fair process in court.

Now let us digress to the suspects as called by the Lady Judge. Whether they are innocent or guilty is a matter for the court to decide. Until then they are presumed innocent. The court has three distinct sides: prosecution, defense and the Bench. Whether the suspects genuinely believe the allegations were influenced by Raila or were part of a 2012 conspiracy against them, is a matter for chest thumping in political rallies in Nairobi, not ICC courtroom. The prosecution defends its allegations using evidence; the suspects and their lawyers disparage the claims on account of law; while the judges arbitrate in the tussle and deliver the ruling. Like in any other court, impressions matter and how one carries himself before the judge, matters even more.

Now it is suicidal to turn your wrath on the ‘referee’ or to show disrespect for the court. It is also foolhardy to be accused of being a warlord and to seemingly look like one out to prove this is true by arriving complete with a ‘delegation’ of fire-splitters.

Whether the Ocampo Six are innocent or guilty, they must remember ICC has a bad impression of them. They can just make it worse or better for themselves by appreciating the new phase of battle will be won or lost in the court-room – not political rallies and prayers. And in the courtroom, you do not need a cheering squad; they will only make your case worse.

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