Friday, September 26, 2014

Despite Its Faults, The ICC Is Still Important

There is a lot that is wrong with the international justice system. It is not only selective in the cases it chooses to pursue, but many times is weighed down by political as opposed to exclusively legal considerations. In recent times, it has not even proven itself as a particularly effective means of meting out justice even to those it has opted to pursue as evidenced by the International Criminal Court’s woeful conviction record.

Yet for all its faults, it is still important. For many in countries where dominant elites murder and plunder with impunity, it still represents a hope for justice. This was the reason why a few years ago, the majority in Kenya favoured trials at the Hague for those most responsible for the violence that followed the December 2007 elections in which more than 1,200 of our countrymen lost their lives and hundreds of thousands more were displaced from their homes.

One of those who pushed for the trials was Ngunjiri Wambugu who in 2011 was part of a coalition of civil society groups who repudiated the Government’s position that Kenya’s sovereignty, as opposed to criminal liability, was at stake in the cases facing six Kenyans at The Hague. As director of Kikuyus for Change, he even reminded Uhuru Kenyatta, who was then Deputy Prime Minister, that “ the Agikuyu have not been charged at the Hague ... He will be going to the Hague to represent himself, in his own capacity.” Pouring cold water on Kenyatta’s “new found friendship with William Ruto”, he wrote that most Kikuyu’s were interested in “getting justice for the victims of the last election-related violence incidences.”

Of course, Ngunjiri Wambugu has since changed his tune. In his weekly column in this paper barely two years later, following the 2013 elections which delivered Uhuru to the Presidency, Mr Wambugu seems to have had an epiphany of sorts. Suddenly, President Uhuru and his deputy were not “two individuals with cases in the [ICC]”. He also discovered that “that the African continent has its own traditional system of resolving the kind of conflict that the first world calls “crimes against humanity” and castigated his erstwhile colleagues in civil society as “crying louder than the bereaved” suggesting that “while we agitate for justice for 2007, the victims might have ‘moved on’”.

I fully respect Mr Wambugu’s right to change his mind on issues. That in itself is not a bad thing. Only a fool never changes his mind, and I do not think he is one. I am, however, interested in why and I suspect that his reasons have more to do with outcomes than they do with processes. After all, didn’t “traditional system of resolving the kind of conflict that the first world calls ‘crimes against humanity’” exist before March 2013? Clearly, justice, at least of the restorative and punitive variety, is yet to be delivered to the victims of the post-election violence. Is it his understanding now that due to President Kenyatta’s “friendship with William Ruto” the victims are no longer interested in this?

The only thing that changed in March 2013 was the outcome of the election. Even as President, Uhuru Kenyatta remains eminently prosecutable and our own constitution makes no bones about this. “The immunity of the President under this Article shall not extend to a crime for which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity” it says in Section 143(4).

In his most recent piece, Mr Wambugu decries the fact that the ICC prosecutor continues to pursue a case that “she does not have enough evidence to sustain” and even suggesting that the demand that the Kenya government cooperate with the ICC is akin to asking it to “self-emollate” (sic). It is curious that he considers requiring the government to follow the law as a form of self-sacrifice. We did not set up the government to pursue the “personal challenges” of its executives but rather the national interests of the entire public. Its duty is to uphold the law, even when –actually, especially when-  that goes contrary to the interests of the dominant political elite. It is the failure to do this, to enforce the law and to punish the President when he breaks it that is the very reason we turned to the Hague in the first place.

From ignoring court orders to arrogating to himself the powers to cancel title deeds and order police to cease enforcing the law against suspects, this President has shown himself to be in utter contempt of the constraints placed upon him by the law. Nothing illustrates this more than the employment of the machinery of the state to fight his “personal challenge” and to subvert the letter and intent of our constitution.  In the face of this assault, our institutions, from Parliament to the courts, have proven themselves impotent in holding him to account.

Mr Wambugu is more concerned about the outcomes than the processes. The fact that Uhuru Kenyatta’s case has collapsed is more important to him than why it did. The allegations of witness intimidation, of cartels hunting them down, threatening and bribing them, of the government failure to protect them, are of no consequence in his eyes.

However they should matter. Because, regardless of whether one thinks Uhuru Kenyatta and William Ruto are guilty or innocent, we should all be invested in a fair and transparent process. We cannot on the one hand be outraged by the seeming deficiencies and even allegations of criminal behaviour on the part of the ICC prosecutor, while ignoring similar allegations of witness tampering by (one can only assume) agents of the defendants and the egregious behaviour of the Kenya government.

Eventually, the ICC judges will determine whether the Madame Fatou Bensouda has evidence or not, whether she has behaved in a manner that upholds the dignity of the court. More than the specific outcomes, however, what should matter to us is the conduct of our own government and of its officials in this matter. If the rule of law is to prove to be a lasting restraint on the appetites of our elites, its threat must be credible.

The ICC process, for better or worse, is a part of our laws and undermining it, as the government has done, is undermining the very basis, the constitution, on which we hope to build the edifice of a nation dedicated to the welfare of all its people, and not just that of its rulers.

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