Kenya’s withdrawal from ICC will impact the society

Tuesday, 10 September 2013

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At the end of World War II, it is said that about 50 million people worldwide had died from the war. Of these 50 million people, 6 million Jews in Europe were systematically exterminated by the Nazi regime in what is now known as the Holocaust. The world was left with a challenge – to seek justice for the victims. This resulted in the Nuremberg Trials.

“The Nuremberg Trials were a series of military tribunals, held by the Allied forces of World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of Nazi Germany” – Wikipedia.

The idea behind the Nuremberg trials was to hold to account the elites, the masterminds, the political and national leaders who together orchestrated by law and by the forces of war the dehumanization and subsequent and systematic termination of an entire ethnic group across Europe.

Since the Nuremberg trials, the United Nations and its member states have sought to curb and deter further crimes against humanity by setting up subsequent tribunals.  Thus the precursors to the formation of the International Criminal Court were found in the successes of the International Criminal Tribunal on Yugoslavia and Rwanda.

In 2002, in full knowledge of the implications on the possibility of members of the ruling elite in Kenya being tried for crimes against humanity, Kenya willingly signed the Rome Treaty and committed itself to the tenets and statutes of the treaty, domesticating its legal mandate in the International Crimes Act and putting clauses in the Kenya Constitution that commit Kenya’s state officers and President to trial should they face charges under any of the international treaties that Kenya is a party to.

In the aftermath of the 2008 post election violence, eminent African dignitaries including Koffi Annan arbitrated on a matter of disputed elections and crafted a power deal between the then two principles, Mwai Kibaki and Raila Odinga which resulted in the NARA agreement, signed on February 28th 2008.

Every single year up until 2012, Kenyans marked that special occasion as the day we put an end to a dispute that threatened to send our entire country into civil conflict.

The tenets of the NARA agreement were specific and clear – that the state would conduct investigations through a commission into the masterminds and key perpetrators of the violence prior during and after the elections; that both sides to the agreement would then rally up their troops in Parliament and create a special tribunal so that the perpetrators of the crimes are tried and convicted and that all of that would occur within 60 days of signing the NARA failure to which the International Criminal Court would be invoked.

Thus the Waki commission was established by the state, and investigations were conducted and the famous Waki envelope was delivered to Mwai Kibaki, Raila Odinga and Koffi Annan.

Immediately the report was handed over, vicious propaganda machinery went into play, to disparage, disown and denounce the results of the investigation. Top behind this negative and abrasive propaganda were the newly elected Members of Parliament, some of whom were at the time believed to be behind the violence experienced in various parts of the country. Despite the best efforts of government at the time, the MPs determined in parliament that they would not create a local tribunal but instead opted to refer the cases to the International Criminal Court.

This past week, the house majority in the Legislature has now decided that Kenya should withdraw from the Rome Treaty because they claim that “a sitting President should not face trial.”

The purpose of the Rome Treaty is to deal with impunity from the elites, principles, politicians and military leaders who instigate violence on a massive scale, and orchestrate crimes including rape, mass murder, displacement, maiming and mutilations of entire groups of people.

Perhaps at the time, our MPs imagined that the ICC would not be able to adequately address the findings of the Waki Commission. Or maybe they believed that they can harass and intimidate local investigators and witnesses as well as investigators and prosecutors from the ICC.

Whatever their initial thought on the ICC was, their decision on Thursday to pass a motion to withdraw from the Rome Treaty, has no bearing on the cases currently being conducted involving Kenyans. It certainly is clear that this motion had nothing to do with the Kenyan President and his deputy who are facing trial at the ICC.

Kenya is a country that has a post-colonial history of elites simply doing whatever the hell they want to do and never worrying about facing justice. For 50 years, during every single election and oftentimes even in between elections, entire villages have faced sporadic violence with the death toll running into thousands. Not a single elite, mastermind or Key perpetrator of these mass killings has ever faced justice, or even been arrested.

It is clear, that the Kenya government in 2002 realized the gross failure at the time of our judicial system and the extreme power that dangerous elites wielded within our borders, and in a desire to hold them to account, signed the Rome Treaty.

We, the ordinary and average Kenyans live hand to mouth; it is a daily struggle to live and meet our families needs. For a people whose daily existence is foremost when they wake up, the idea that a lack of justice and a failure of the Judiciary fragments the society and creates a violent and primal country is something we sense and experience but cannot fully comprehend.

But, to the elite, the lack of justice and a failure of Judiciary mean that one can reign as a mini-despot in the various constituencies, periodically killing off dissent and exerting pressure and control despite there being an already existing government in place.

It was the desire of the drafters and signatory states to curb this level of impunity, and Kenya alongside a majority of African countries recognized that within their nations exist elite classes of politicians, military leaders and business people who will not face justice for their crimes unless those cases are dealt with at the ICC.

Kenya’s impending withdrawal from the Rome Treaty is not driven by any sort of desire to enhance or strengthen the local Judiciary or seek justice locally, rather it is driven by a desire by the elites to escape trial and justice. This country faces a future where the society cannot evolve to a more stable democracy with a working legal system that is applicable to all members of society regardless of status.

Just as the Nuremberg Trials impacted the future of Europe and were significant to creating more stable and just democracies, Kenya’s withdrawal from the ICC will certainly have an impact on the future of our society and the tenets of democracy vested in our laws and Judiciary.

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