from: Mary Gakere 1:46 am
date Jul 26, 2009 1:46 AM
subject KENYA

A LOCAL TRIBUNAL AND NOT ICC, IS THE ONLY WAY FORWARD FOR KENYA

Our beloved country Kenya is currently torn between a local tribunal and International Criminal Court (ICC), as a means of finding a solution to the post election violence. This stalemate is born of the Wananchi’s doubt and cynicism with our local judicial system. Past events in the country display our judicial system as weak, ambivalence and easily swayed system of justice. It is common knowledge how our judicial system has often been compromised through bribery, favoritism, nepotism, tribalism-in general absolute corruption that breads miscarriage of justice. Out of anger and frustration with our system of justice, we easily and without proper evaluation embrace ICC as the magic bullet that will bring us lasting peace and unity.

Given such a dismal account of ineptness of our own judiciary, it is no wonder majority of Kenyans (68 percent), would opt for ICC rather than have a local tribunal try, prosecute and adjudicate the perpetrators of post election violence.

We were all stunned by the madness that engulfed our country and our people once the elections were concluded. Mayhem, murders, arsons, and all other heinous crimes that took place among and between peoples of the same nation, was unlike anything imaginable. Many could hardly believe this was the same Kenya that was respected world wide as beacon of peace and progress in Africa. Our more than 40 years of nation building turned into futility within a matter of hours. Seemingly so strong and united -Amani and Umoja, yet so weak and fragile; became the reality of our situation. For ever, in the eyes of Kenyans and the world, our innocence was lost.

Yet, out of this seemingly hopeless situation, we must rise above it all and create a local tribunal with capacity and discipline to steer through all that mess, adjudicate, try and bring forth a lasting solution that is deeply rooted in the causes that ultimately shook the foundations of our nation. This must come to pass because there is no ICC solution for Kenyan problems. ICC lacks the appropriate tools, stamina and track record to handle a massive and far reaching crisis such as our own. Our history; colonial era in particular, shows that we had a lot of help by outsiders in creating a divisive country, suspicious attitudes among different tribes and land alienation and confusion; some of which are the lingering past in the present that are the underlying causes of the animosity we harbor against members of different tribes. It would be fatal for us now as a nation to had over the task of weaving together the garment of our national unity to foreigners, under the fear and pretence that, only others can do it better for us. Yes, our judiciary is far from perfect, but it is ours and nobody but ourselves can fix it.

What we need in Kenya right now is faith and trust in ourselves and our institutions and not ICC. Whatever is broken in our judicial system must be addressed and rectified immediately. There are those who will argue that there is not enough time to correct all that is so horribly wrong with our system of justice. But such argument must be rejected. Where there is a will there is away. The gravity and urgency of the matter before us is inducement enough to compel Parliament to act expeditiously in putting up judicial reforms credible to Wananchi and adequate to the task before us. We must strengthen our prosecutions and follow the laws strictly. We have laws in place that address every wrongful act committed during the post election violence. We have law professionals in our country who are highly learned and disciplined enough to handle whatever is thrown their way so long as we fully appraise the import of the matter before us. We cannot fail and we should not borrow justice, or expertise from International Criminal Court because the Court doesn’t have it either.

The International Criminal Court (ICC), should not be confused with International Court of Justice( ICJ), aka World court . International Court of Justice was established as an arm of United Nations in 1946 with its seat at Hague-Netherlands. ICJ is the principal judicial organ of the United Nations. It settles issues between nations and not between individuals as is the case with International Criminal Court (ICC).

The International Criminal Court (ICC), with its headquarters also at Hague-Netherlands, commenced about seven years ago. It is therefore relatively new and without adequate experience to address the situation of the magnitude of the events that erupted in our country following the last general elections. Out of about 194 countries in the world, upon its inception, July 1St 2002; ICC had a mere 60 countries that had ratified the Rome Statutes-which is its founding document. Currently, about 109 countries have ratified the Rome Statutes. As such, this institution that claims to be international is anything but that. Moreover, some countries that are major players in the world scene: United States, Russia, China, India, Israel, Yemen, Libya, Pakistan, Egypt, Indonesia, Turkey Iran among others, are not members of this so called international institution (ICC).

So far, the court has very limited experience having handled four cases none concluded yet and all of them originating from Africa. Arrest warrants have been issued for 14 people (all Africans): In Uganda, court seeks; Joseph Kony (still a fugitive) Vincent Otti (now dead), Raska Lukwiya (now dead), Okot Odhiambo (fugitive) and dominic Ongwen (fugitive). In Democratic Republic of Congo: Thomas Lubanga, (in custody), Germain Katanga (in custody), Mathieu Ngudjoo Chui ( in Custody), Bosco Ntaganda ( fugitive). In central African Republic: Jean Pierre Bemba (in custody) and in Darfur (Sudan): Oma-al Basshire- president of Sudan (fugitive), Ahmed Haroun (fugitive), Ali Kushayb (fugitive), Bahr Idriss Abu Garda (willing to co-operate)

It should be noted that ICC didn’t conduct Rwanda/ Tutsi or former Yugoslavia genocide-ethnic cleansing trials because it cannot undertake any situation that predates its inception-July 1st, 2002. United Nations (UN) had special tribunals that were set up for that purpose only. And former Liberian Leader Charles Taylor is being tried by a UN-backed special court for sierra Leone (SCSL), not by ICC.

Since the court has exclusively dealt with Africa only, it has been dubbed in some circles; “Africa Criminal Court” (ACC). With so little practical experience as ICC, and with nothing substantial to show as an out come of a completed proceeding, the court has no business assuming responsibility in handling our extremely complex situation with crime scenes and both perpetrators and victims spread out literary across the entire nation. If the court were to take over the Kenyan cases, it would be the most far reaching and wide spread trial arena that the court is yet to experience. We would not like for the court to use our country and our sad events as its learning experience with complex situations, varying languages, traversing across our nation back and forth collecting evidence and materials necessary for a massive trial. Fortunately, ICC is a court of last resort intervening only when national authorities cannot or will not prosecute. We must not submit to this court because Kenya can and will thoroughly prosecute all the perpetrators of post election violence.

The court (ICC) has many short comings; no police force of its own hence would have to rely on Kenyan’s law enforcement officers to arrest persons wanted. Our own people; though not the one’s in- charge, would still do it all: relocate witnesses, collect evidence for use in the proceedings, and enforce the sentences of the convicted persons. The court has no prisons of its own per-se. It depends on good will and co-operation by party States.

In short, we will do all the work and pay all the bills no matter how many years the court takes working our cases, and then wait for the court’s verdicts so we can carry out its orders. There is no telling how long the court will take if we allow it to take over. It could be years. Already, seven years since its inception, it is barely beginning the first proceedings. If the court takes many years working cases in Kenya (as its likely to do), this could end up being extremely expensive for our country and people.

The International Criminal Court is at its infant stage. It doesn’t enjoy wide spread popularity as it is yet to prove itself. In his reaction to the Rome Statute, Bill Clinton the 42ND president of United States said, “ US should have chance to observe and asses the functioning of the court overtime before choosing to become subject to its jurisdiction”. During his tenure in office, President George W. Bush criticized the court (ICC) and withdrew the USA from any participation, he has since sought assurance from other countries that they would not support any effort to subject its citizens to the ICC. He further stated, “ — every person who serves under the American flag will answer to his/her own superiors and to the military law not to the ruling of an unaccountable International Criminal Court (ICC)”. And the US Under Secretary of State, John R. Bolton referred to the court (ICC), as a “ product of fuzzy-minded romanticism — not just naive but dangerous”. (Ref: Washington post . Tues, Nov. 7th, 2006; pg.A16)

We shouldn’t allow an experimental court to take centre stage when dealing with our most demanding and sensitive issue since independence. We cannot compromise the sovereignty of our country to an amateur court. How we carry out the task before us could very well determine how we are going to live as Kenyans for the next fifty years. This is our challenge we must give it all because we owe it to ourselves and posterity.

Upon the conclusion of the last general elections, our whole country went into a state of shock and a lot of Kenyans did some very horrible things against their brethrens. Outrageous acts that were out of character for many of the players. Justice must be done and perpetrators, once convicted must be punished according to the laws of the land. But as we proceed to seek justice for the victims of such senseless acts; as a matter of public policy, we must be mindful of the sensitive nature of our situation. We must be sure to address the underlying causes, the sentiments and grievances that might have been simmering within, that erupted once the elections went bad. We cannot quit holding elections otherwise we wouldn’t be a democracy, at the same time, we cannot behave like lunatics at the conclusion of every election.

In order to address it all, this Kenyan problem must have a Kenyan solution no matter how inadequate we think our judicial system is. We need a strong and credible local tribunal whose members should be drawn from both victims and perpetrators side.

We should bear in mind that we have a double task: to bring justice to the victims and healing to the nation.

Njau Njembura Njoroge