The following article originally appeared in The Star.
Most unfortunately, the pre-trial chamber will conduct its business in the context of presidential campaigns in 2011 and elections in 2012... Some of the individuals mentioned by the ICC prosecutor are among the front runner presidential candidates and the civil servants mentioned are in office and charged with responsibilities for peace and security. Needless to say... the pending ICC indictments pose a real and present danger to the exercise of government and the management of peace and security in the country.
This is part of a letter from Kenya’s Ambassador or Permanent Representative to the United Nations Macharia Kamau to the UN Security Council dated February 28, 2011. Clearly, all of this is spin: done with such consistent tenacity, it will inevitably cause political vertigo for those who are trying to maintain a semblance of order and structure, leading to even more confusion and disorientation and ultimately result in the total loss of direction or bearing. Which, of course, is what the government intends.
In the first spin, the Kenyan government is blaming the ICC for its inappropriate timing. “Is a rush to undertake the pre-trial process in the political climate of a presidential campaign worth the risk of destabilizing the country and a return to violence and loss of life in Kenya?” wonders Ambassador Kamau. Here is a government that is playing innocent victim: like it has suddenly and out-of-the blue been ambushed by the ICC. Indeed, it would appear as if the government of Kenya did not have any opportunity to bring to full account those behind post-election violence.
But, pray, what was it doing between March 1, 2008, and March 31, 2010, when ICC Pre-Trial Chamber II granted the ICC Prosecutor’s request to commence an investigation on Kenya for crimes against humanity? Twenty-five months went a-wasting while it took Louis Moreno Ocampo less than nine months—between March 31, 2010, and December 15, 2010—to investigate and advance cases against the now infamously labeled Ocampo Six. With an unfavorable result against the real owners of Kenya in the horizon, the ICC is suddenly to blame for “rushing” to bring to book those behind post-election violence!
Second, the government is expressing deep concern about the peace and security situation should the case against the Ocampo Six proceed. Some, it argues, are presidential candidates while others are civil servants in-charge of peace and security. This, of course, is not backed by any facts—Kenya has, for instance, maintained its tranquility despite the public naming of the Ocampo Six in December 2010. Moreover, how the government expects to escape with such painfully pedestrian logic is dumbfounding. Here is the logic of the untouchables: the logic that disavows state responsibility when a few threaten the majority. This logic argues for state abdication of its core responsibility in favor of keeping the powerful happy. So after, they have eaten our maize, give them our oil... and after that?
For how long shall Kenya remain the kiosk of these few? Is the future destiny of the whole country to be sublimated to the whims and presidential ambitions of one or two? Is Kenya to be held to ransom by those who for the time being may be in charge of security? Is Kenya not a state that has laws which all must obey? Can civil servants not be re-deployed, interdicted, or even fired?
In the third spin, the government is saying that the ICC will subvert the implementation of the new constitution. Here is Ambassador Macharia Kamau again: “Furthermore, the impressive constitutional and legislative reforms underway in Kenya… must not be subverted by ICC action right now.” This statement totally disfigures Kenya’s constitutional history. The old constitution was replaced because it ultimately allowed rampant, incestuous impunity. The new constitution has established mechanisms to curb these but is still in its infancy and cannot be expected to immediately tackle the harder, more entrenched cases of impunity. This is where the ICC process comes in: to reinforce the new beginning rather than undermine it.
For how will the new constitution tackle post-election violence when its own implementation is still hotly contested territory? How will we settle for who will preside over a local tribunal when we cannot agree on who will be our chief justice? How many judges can we certainly say are strong enough to withstand both honied inducement and nasty coercion from Kenya’s political elite? To whom shall we hand over witness protection? How do we expect witnesses to come forth when we have not yet dealt with the militia problem? Which police force do we expect to undertake investigations knowing full well that the one currently in place stands accused of being a main perpetrator of post-election violence?
These are the kinds of questions that no one is providing answers to. What we are getting, however, is plenty of spin. Just how dangerous is this spin? The Waki Commission, after in-depth investigations concluded “the incident which captured the attention of both Kenyans and the world was the deliberate burning alive of mostly Kikuyu women and children huddled together in a church in Kiambaa on January 1, 2008. They had sought refuge in the church following a December 30, 2007, attack on their village of Kimuri, bordering Kiambaa. According to reports, including witness testimony, mattresses and blankets were set ablaze with petrol and thrown into the building while mothers and babies who were trying to flee the inferno were pushed back into the church. Kikuyu men attempting to defend their church and loved ones were hacked to death with machetes, shot with arrows, or pursued and killed. The death toll for this horrific incident was 17 burned alive in the church, 11 dying in or on the way to the Moi Teaching and Referral Hospital, and 54 others injured who were treated and discharged."
You know how one spinmeister described it: An accidental kitchen fire during preparations for lunch.