[UAH] ICC LETTER IS AN INJUSTICE TO KENYANS AND THE SUSPECTS

ICC Letter Is An Injustice To Kenyans And The Suspects

 

BY DR SEEMA SHAH

Last week, the Permanent Mission of Kenya to the United Nations, headed by Ambassador Macharia Kamau, submitted a letter to the UN Security Council, asking for the “immediate termination” of the ICC cases against President Uhuru Kenyatta and Deputy President William Ruto, who are scheduled to soon begin trial for their alleged roles in perpetrating crimes against humanity against Kenyans in the aftermath of the 2007 election.

Much of the debate around the letter has focused on whether or not the pair authorized it, but there has been less attention on the messages contained therein. What is particularly alarming is Kamau’s attempt to paint the ICC as an illegitimate and irrelevant arbiter in relation to Kenya, which he does by using the recently concluded (and contested) election as “proof” that Kenyans believe the suspects are innocent and amending the historical narrative to exclude Kenyan support for the Court.

Ironically, this line of attack actually works against the very Kenyans Kamau purports to represent, as it attempts to obstruct the victims’ pathways to justice and undermine the creation of a truthful and representative national account of the 2007-08 violence, which are critical to a peaceful and democratic future.

Ambassador Kamau emphasized the importance of the 2013 election, stating that it was a testament to Kenyans’ endorsement of the suspects’ innocence. He goes as far as to say that Kenyatta and Ruto were “overwhelmingly” elected, thereby proving that Kenyans do not support the cases against them.

In addition to the fact that the 2013 election was fundamentally flawed, colored as it was by multiple, unverifiable voter registers; tallying forms laced with unauthorized changes and errors; and a breakdown of all checks on the manual counting system, there were over 6 million voters, representing essentially half the voting population, who cast their ballots for other candidates. Kenyatta only passed the 50 percent threshold with a little over 8,000 votes, representing just .07 percent of the total vote. This is hardly “overwhelming support.”

The 86 percent voter turnout figure cited in the letter is also highly suspect. Not only is it based on problematic tallying forms and an unverifiable voter registry, it is fully 30 percentage points higher than the 2002 election and 17 percentage points higher than turnout in the 2007 election. Given that the 2002 election was arguably the most anticipated one in Kenyan history, the 2013 reported rate seems unlikely.

The letter also makes the claim that the ICC process undermines sovereignty in Kenya, painting the entire process as foreign interference in Kenyan affairs. What he seems to have forgotten, however, is that it was the Kenyan government that signed the Rome Statute in the first place. Furthermore, Ambassador Kamau states that the Kenyan case was taken up by the ICC prosecutor at his own behest and that he cherry-picked the individuals to investigate. This is patently untrue. The Kenyan delegation in Geneva agreed to allow ICC Prosecutor Luis Moreno Ocampo to start the preliminary investigations. Moreover, as has been widely reported, the individuals named for investigation were selected based on an investigation, which was itself led by the Kenyan Court of Appeals Judge Philip Waki. In fact, it was Waki who proposed the ICC as an option in the first place.

It was the Kenyan government that refused to establish a local tribunal to try the cases on two different occasions (February 2009; November 2009). It was also Kenyan politicians, including the very officials who are now resisting the Court, who led the campaign to go to the Hague. Overall, the process seems to have proceeded entirely with the support of Kenyans. Perhaps most importantly, as of January 2013, 66 percent of Kenyans said they supported the ICC prosecutions. Surely, 66 percent support is far greater in significance than the .07 percent claimed by Kamau as evidence of “overwhelming” support.

The Kenyan Mission also tries to claim both that the cases are unnecessary on the grounds of peace and security and that peace in the entire region would be threatened by the absence of Kenyatta and Ruto. This latter statement is a most serious assertion, raising the specter of violence. It is also, however, difficult to understand.

Time and again, it is clear that publicly acknowledging and legitimizing the trauma inflicted on society is crucial to the process of achieving future stability. In 2012, former Liberian president Charles Taylor was sentenced to fifty years in prison for his role in atrocities committed in Sierra Leone back in the 1990s. Today, cases against perpetrators of the violence in the former Yugoslavia are still ongoing, more than a decade after the end of conflicts there. Yes, general stability may have returned to these former conflict zones, but ensuring the perpetrators of war crimes are brought to justice has been recognized as critical for these societies to be able to confront and resolve the past. Governments that fail to pursue justice send the message that they are not committed to the rule of law. This can intensify inter-group mistrust, hinder security and development goals and can even lead to the cyclical recurrence of violence in various forms.

In fact, undermining Kenyans’ quest for justice is an insult to what they endured, and it is that which could be the real threat to long-term peace in Kenya. Indeed, there are already signs of unwillingness to confront the past in Kenya. The Kenyan Truth, Justice and Reconciliation Commission, which investigated the 2007-08 post-election violence, was statutorily bound to release its report on May 3 of this year. That report has yet to be released.

The letter asks the Security Council to give Kenya time to deal with the cases in a local context, stating that Kenya “has the capacity to offer a homegrown solution.” To date, however, there is no Kenyan court which has the capacity to try crimes of this stature, including crimes against humanity. In fact, the closest manifestation of such a court would be the International Crimes Division of the Kenyan judiciary, which is still in the process of being created. Even then, however, the Attorney General and Supreme Court Chief Justice Willy Mutunga clearly stated that this division – even when it is established – will have no bearing on the cases in the Hague. Where, then, is this court?

And finally there is the issue of “moving on.” Contrary to the message in the letter, moving on and seeking justice are not mutually exclusive. To move forward is not to forget. In fact, the quest for justice involves remembering the truth so that it can be used to prevent future atrocities. That act of remembering pays homage to the victims, acknowledges their stories and ensures that they are an integral part of the nation’s collective memory. Moving forward implies a resolution of the past. Surely that resolution is predicated on justice for the victims and an understanding of what happened, in all its truth, for all Kenyans.

Dr.Seema Shah is a public policy researcher for the Africa Center for Open Governance.

 

 

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