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ICC Not Solution To Poll Violence

 

Saturday, October 26, 2013 - 00:00 -- BY SAM OMWENGA

 

Contrary to what many believe, all indications are that justice for post-election violence (PEV) victims cannot be had at the International Criminal Court. Neither would closure of any kind be had there for this dark chapter of our country’s history.

This is true regardless of what one believes “justice” to be for PEV. There are those who believe the trial, conviction and jailing of the ICC suspects is what justice calls for while there are those who believe such an outcome would be the very definition of more injustice from the imperialist west.

No surveys have been done on this but one would have to assume the country is divided almost evenly as to who is on what side of either of these two sides.

However, truth be told, the vast majority on either side of these opposite camps take their position not because they actually care about justice for PEV victims, but because of reasons that have nothing to do with PEV.

If you take away the number of those who were directly affected by PEV from those who believe justice can be had only by the trial, conviction and jailing of the suspects and lump the rest together with those who see such an outcome as injustice from the imperialist west, you’ll have a super-majority of people whose view of the ICC is not linked with seeking true justice for the victims.

In other words, you’ll have a situation where the ICC becomes a venue to even political scores, which is not what the ICC is there for. This is actually what we have going on already as there’s a strong co-relation between how people perceive the ICC and what should come of it and whether they support President Uhuru Kenyatta and his government or not.

In this sense, PEV and its victims are just pawns in this emotional and psychological game only played to an international audience as opposed to the traditional local tussles.

On the other hand, people wrongly assume that ICC judges hearing these cases only consider the facts established and law to render a judgment. That is not true.

Political considerations also weighs in as we saw from one of the judges presiding over Uhuru’s case, Judge Chile Eboe-Osuji. He readily admitted that political consideration was at play when the court agreed to allow President Uhuru Kenyatta his wish to appear in person only at opening and closing of the case against him.

This same political consideration would, no doubt, lead the judges to conclude that given the country is nearly evenly divided as to what the outcome should be, the ICC will likely acquit or convict but have the convictions reversed on appeal to avoid further political division and turmoil in the country.

That’s not to say political consideration will always trump the law and facts, rather, whether that happens is on a case by case basis. For example, were someone like Omar Bashir of Sudan to be arraigned and tried at the ICC, political consideration will be outweighed by the overwhelming evidence against him such that he would have no prayer of being acquitted.

President Uhuru Kenyatta is not in the same league and this distinction is not lost in how the west is warming up to the idea of deferring his case. This is the political reason why justice for the PEV victims cannot be had at the ICC.

Besides political consideration, there is also a legal reason why one cannot look to the ICC for PEV justice. When the Rome Statute under which ICC operates was being put together, great care was taken to make sure only certain cases can be tried in that court. The Statute assumes that crimes such as murder, rape and forcible displacement of people will always be committed in every country but those countries must handle and deal with those crimes without ICC involvement.

ICC only gets involved where the crimes satisfy a strict criteria established by the statute but only as a last resort when the concerned government of fails or is unwilling to prosecute the crimes.

Thus, in order to secure a conviction against the suspects, the ICC prosecutor must, among other things, prove the existence of a widespread or systematic attack against a civilian population.

There is also an additional requirement that the prosecutor must not only prove that there were multiple acts directed against a civilian population in a systemic and widespread manner but also that these acts were pursuant to or in furtherance of a state or organisational policy to commit those acts.

There is no evidence and the prosecutor can show that Ruto acted in furtherance of a “state” or “organisational policy.” Ruto was not part of the government during the PEV period so he could not have been acting in furtherance of a state policy.

He campaigned and belongs to the Orange Democratic Party (ODM) but the party had nothing to do with PEV and certainly it did not have a policy of engaging in systemic commission of crimes against humanity therefore the organisational policy prong of this element of an ICC crime also fails.

This is why Ruto walks even before the gory details of the crimes committed are considered. As previously argued by this writer, Ruto walks, the president walks as well because it’s unfathomable that a sitting president could be convicted under these circumstances, especially given the genesis of these cases.

To be sure, it’s equally unlikely the prosecutor can satisfy the technical requirements to convict under which Ruto walks as regards to Uhuru. The only way that happens is someone like Muthaura singing like a canary but we know that won’t happen so no case there either.

All this, then, leaves as the only viable solution terminating or deferring the cases and making it possible to create a mechanism by which the victims can be compensated while there’s a quest for true peace and reconciliation between and among those who were affected and all Kenyans.

 

 

           Thé Mulindwas Communication Group
"With Yoweri Museveni and Dr. Kiiza Besigye Uganda is in anarchy"
           Kuungana Mulindwa Mawasiliano Kikundi
"Pamoja na Yoweri Museveni na Dk. Kiiza Besigye Uganda ni katika machafuko"