Kenya and the ICC: Fact Versus Fiction

Before December 17, we will file before pretrial chamber III of the International Criminal Court two written applications of around 80 pages each, summarizing the facts and analyzing the evidence collected. We have to prove that there is a reasonable basis to believe that the persons committed the crimes.

With this statement from the International Criminal Court (ICC) Prosecutor Louis Moreno-Ocampo, the buzz in the Kenya’s politico-sphere went shrill.  There were of course silent hurrahs from those who believe that impunity in Kenya has reached cancerous proportions. But the decibels of protest were loudest from those protesting all manner of things about the forthcoming ICC indictments. Listening to the inane drivel spewing uncontrollably from those protesting, one would think that the ICC intervention has been sprung upon us by ambush. However, we did not get here by accident.

The Kenyan political class has never been comfortable with the word "accountability." Since independence, we have seen commissions of inquiry come and go for all manner of abuse and violations. The outcome: many brilliant recommendations which are never implemented. So the Commission of Inquiry into Post-Election Violence (otherwise known as the Waki Commission) decided to end this merry-go-round by binding the coalition government in Kenya to either cobbling together a credible local process of accountability on post-election violence or, if this was not possible, enlisting the assistance of the ICC.

The Waki Commission had recommended with regard to the local option a special tribunal similar in structure to the Sierra Leone Special Court as a mechanism for accountability for those who bore the "greatest responsibility" for crimes against humanity committed during the post-election period. The special tribunal would apply both Kenyan and international law. It was to be anchored in the Kenya Constitution to insulate it against constitutional challenges. The proposed tribunal was to be a mixed local and international court with only two of its six judges being Kenyan nationals: as an attempt to insulate it against manipulation and corruption, ensure protection for victims and witnesses, and provide fair trial safeguards for defendants. There was also to be a total ouster of the jurisdiction of the "ordinary courts in relation to the proceedings of the special tribunal."

Having fully accepted the Waki Commission recommendations, the government moved to try and establish a local special tribunal to try those behind post-election violence in Kenya. When the necessary legislation was taken before parliament, it failed. The legislation to establish the tribunal required a two-thirds majority in parliament to amend the constitution so at least 145 votes were needed to pass it. In February 2009, only 101 MPs voted in favor of establishing the tribunal: a miserable failure. Later, Justice Minister Mutula Kilonzo tried to convince the cabinet to endorse the idea of forming a special tribunal. This too was shot down in July 2009 with the message being that the judiciary, with reforms undertaken, would be charged with this task. (Tragically, even in December 2010, the idea of judicial reform remains just that—an idea.)

In came the ICC option. The Kenyan government declined to refer the country to the ICC so prosecutor Louis Moreno Ocampo had, for the first time in ICC history, to use his own motion to seek authorization to begin an investigation on Kenya. Permission was granted in March 2010 by the Pre-Trial Chamber.

As Ocampo’s work has accelerated, we have started seeing the shadow of impunity begin to interfere. We are told that Ocampo is relying on the reports of the Kenya National Commission on Human Rights and the Waki Commission. Two witnesses recently suddenly emerged claiming they have been "coached" and "bribed."  We are constantly told that some communities are being targeted. We invited Sudan’s Omar Al Bashir—who is facing an ICC indictment and arrest warrant—to our constitutional proclamation bash, and suddenly we began to see a choreographed connection being made around "stability" in both Sudan and Kenya. The attorney-general suddenly finds his voice—after so many silences—and suggests that the ICC will have a difficult case to prove. And we start to hear that there is a renewal of the (Kikuyu, Kalenjin, Kamba) KKK tribal alliance.

We could be confused by all this. But we really should not. For there is another side to this story: Ocampo’s. He conveys that he has "since March... been investigating the violence. We collected new evidence, including testimonies, videos, and documents." So why the hullabaloo about relying on the KNCHR and Waki Commission reports unless there is a new Wikileaks dynamic at the ICC that only those opposed to the ICC are privy to? Happily, Ocampo adds: "We are not going to discuss our evidence in the media. We will do it in court."

It is clear what we are witness to is the difference between information and disinformation, news and propaganda, facts and fiction. Amos Wako’s statement is another example. Whenever challenged to take on issues of criminal accountability against the political class, Wako has been, to borrow Uhuru Kenyatta’s description of Mwai Kibaki, a "hands-off, eyes-off, everything-off" attorney general. Now out the blue, he has found his tongue and offered gratuitous advice about the enormity of the task facing Ocampo.

Incidentally, it’s not that Ocampo doesn’t know: he is himself aware that his challenge is "to prove who are the most responsible for the crimes committed; to prove it in a court of justice." So why would Wako adopt the "it is almost impossible" argument if not because, as Professor Philip Alston pointed out, he is the "embodiment in Kenya of the phenomenon of impunity"?

An outcome of all this has been the renewal of the KKK ethnic alliance. Lest we forget: the ICC process is not about communities but about powerful, wealthy individuals who are so immersed in their search for power that will unrepentantly, like the pied piper, lead all who will follow into the deep blue sea. The more one analyzes this formation and the more one remembers the post-election violence, the more one of Aesop’s fables comes to mind:

One wintry day a Woodman was tramping home from his work when he saw something black lying on the snow. When he came closer he saw it was a Serpent to all appearance dead. But he took it up and put it in his bosom to warm while he hurried home. As soon as he got indoors he put the Serpent down on the hearth before the fire. The children watched it and saw it slowly come to life again. Then one of them stooped down to stroke it, but the Serpent raised its head and put out its fangs and was about to sting the child to death. So the Woodman seized his axe, and with one stroke cut the Serpent in two.