Let’s not export our stupidity, let’s wallow in it

By Mutuma Mathiu

I am amused by the outrage expressed by MPs over the Cabinet decision to try election violence suspects in the High Court. Why are MPs pissed off? They got what they wanted, didn’t they?

Parliament rejected a special tribunal in March. MPs have also made it very clear that if the government tries to have the same laws passed, they will reject them. Without those laws, a tribunal can’t be formed.

Even before the warlords in the Cabinet put their hooves in, Parliament had already killed the tribunal concept.

The option left was the International Criminal Court. Now, I know the ICC is a very popular and fashionable notion in political circles. But, if what I have been reading is accurate, the ICC shares an important quality with Attorney-General Amos Wako: Its record of successful prosecution is zilch. It hasn’t put any warlords in the slammer as yet.

Of course it is very professional and very thorough and, therefore, the pace of justice is glacial.

My biggest problem with the ICC, and that’s why MPs love it, is because it is a wholesale shop. It will try four of the biggest warlords, tops. So what happens to the matchete artists, the arsonists, the rapists and other animals hiding in our midst? Do we say that so long as we take out those who gave the orders and the money, then justice is properly served?

In the Cabinet, the warlords were not going to make it easy for the rest of us. They were not going to cooperate in putting in place mechanisms that would ensure that they are punished for their crimes. Question is, what are the warlords doing in the Cabinet in the first place? And how can you expect justice in a country where suspects take decisions about their own punishment?

The concept of official responsibility was also a fat, big worm in the broth.

The unspoken fear among President Kibaki’s allies is that he, as President and Commander-in-Chief, could be held responsible for the breakdown in law and order and the subsequent bloodshed in the control of lawlessness. After all, if the security services killed rioters, as is being alleged, who gave the orders? So they were not just going to take their man, tie his hands behind his back and hand him over to some Australian judge, were they?

One minister called me and, after about an hour of name-calling in which the term faeces featured, explained to me that I was part of a tribal conspiracy to have him removed and the job given to someone from my tribe. For the first time in that exchange, I was completely lost for words.

I was just criticising the guy for not doing his job; I neither liked nor disliked him, I was just saying he was not doing his job right. His interpretation of that honest motive was such an exercise in paranoia, invention and deconstruction that I was totally lost.

Justice minister Mutula Kilonzo is a cunning, forceful and clever politician. You’d have to be after a lifetime as the legal adviser of an African dictator.

I wonder whether he saw how the Bills he had authored would play out among the inventors, conspiracy theorists and deconstructors of the Cabinet. I can bet you that there are politicians in that Cabinet who were asking themselves: Why is this man insisting on the removal of immunity? The short answer is of course that in the context of international crimes, the concept of immunity is a dead one.

But they must have looked around the Cabinet room and realised that if the President and the Prime Minister are allowed no immunity, and all the suspected criminals are carted away for processing and repackaging by an Australian judge, and all those with official responsibility are similarly dealt with, one man will be left with a clear run to the presidency: Vice-President and leader of Mr Kilonzo’s party Kalonzo Musyoka.

The inventors, deconstructors and theorists of the Cabinet must have nodded at their own wisdom and political cunning and said: Aha, so this man wants everyone taken to jail so that his man can be handed power on a platter? And the Bills were dead in the water.

Kenya wants to be a country that does not take any hard decisions or bear the pain of its own weaknesses. It wants someone else to come and clean up its own messes. Always on the lookout for a short-cut to avoid the hard choices. You have an AG who does not prosecute corruption? Form an anti-corruption commission. Police are corrupt and do not investigate crime properly? Why, form another police force, as recently suggested. You have corrupt and slow courts? Send the suspects elsewhere and let them be somebody else’s problem. Politicians and their crook friends have looted the economy? Form a commission, give its report to the Judiciary to tear up and flush down the toilet.

We deserve the society we have created. Let’s not export our stupidity, let’s wallow in it, let’s choke in it.

I do know, though, that someone somewhere can pick up the phone and say: I want every fool involved in this nonsense arrested, I want each and everyone of them prosecuted. And it will happen, and there will be no transfer of judges, injunctions or delays.