Where is the proof Mr Abdullahi?

For an apparently bold crusader, Ahmednasir Abdullahi, the proprietor of the Nairobi Law Monthly, can be maddeningly, frustratingly cavalier in his presentation of evidence to support his myriad causes. In this month's issue of the venerable anti-Establishment magazine, Mr Abdullahi declares without equivocation that "The government of President Kibaki is not committed to such a trial" (Hidden card in Kibaki's fresh push for local tribunal, Nairobi Law Monthly, May 2012). Mr Abdullahi is, of course, talking about the imminent trial of four Kenyans at the International Criminal Court at The Hague for crimes committed in the aftermath of the 2007 general elections. Without a shred of proof, he bolsters his allegation with wild such statements as "the Kenyan police have refused and resisted to test the pain and pleasures of reforms" and "In fact, the Office of the President is not committed to police reforms and remains the biggest stumbling block to police reforms".

When Mr Abdullahi and the Nairobi Law Monthly decided to go after the Kenya Electricity Generating Company (KenGen) and its boss Eddy Njoroge over tenders awarded for the drilling of geothermal wells, they had the foresight to publish evidence that supported their claims. As a result of their efforts, the Director of Public Prosecutions has taken up the matter and it remains to be seen whether the evidence unearthed by them will be sufficient to support a prosecution of the KenGen boss. This, however, is not the case in the current campaign against the President and his administration with regards to the post-election violence, the trial of the four Kenyans at the ICC and the reform of the police.

Beginning with the police reforms, even Mr Abdullahi must admit that while ordinarily the buck stops with the head of government, in Kenya, Mwai Kibaki and Raila Odinga, the Prime Minister, have so given their respective Ministers a free hand to run their ministries as personal fiefs that they have become almost a law unto themselves. For this reason, it is important to examine the actions and motivations of the Minister of State for Provincial Administration and Internal Security, his immediate former Permanent Secretary, and the Commissioner of Police and Commandant of the Administration Police. Prof George Saitoti took over from the frighteningly effective John Michuki whose campaign against the Mungiki was as illegal as it was effective. Both were served by the able and competent Francis Kimemia, now the acting Head of the Civil Service. However, it is the decision by John Michuki to build up the fighting capacity of the Administration Police that must be examined in the context of the on-going reforms.

During the referendum campaign, Mr Michuki and Prof Saitoti were opposed to stronger independent civilian oversight of the police forces as well as the creation of a unified command under the Inspector-General. The regular police had become a most reviled institution and its reforms could not be stopped, both ministers understood; but the faith accorded to the Provincial Administration at the grassroots, a faith that took in the Administration Police, was something they could exploit to create an alternative force that had the goodwill of the people. Given the frequently quasi-judicial roles the Provincial Administration played and continues to play in rural Kenya and its power to enforce its awards through the Administration Police, Mr Michuki, Prof Saitoti and Mr Kimemia must have calculated that the majority of Kenyans would not be opposed to the continued existence of the AP, especially, in one form or the other. Thus, the billions that have been lavished on them since 2003 explains the modernisation in their equipment, training and tactics and the creation of specialised unites like the Rapid Deployment Unit. But very few Kenyans recognise the pivotal role the APs played during the 2007 general elections or in its aftermath; all eyes are on the corrupt and perfidious regular police. Resistance to the reforms in the police service probably will persist now that the two forces are under the command of the Inspector-General, because it will be impossible for the two to be used in the manner that they were in 2007 and 2008.

Now, as to the case of the post-election violence and the trial of the four Kenyans at the ICC, all can remember that the pursuit of statutory measures to have the trials in Kenya were spearheaded by both the President and Prime Minister. President Kibaki, and even recently the Prime Minister, has never shied away from his desire to have the investigations conducted by Kenyan prosecutors or the trials held in Kenya. There is nothing ulterior about his continued desire for the same today. In the past it has been easy to dismiss the sovereignty argument on the basis that Kenya made its bed by signing the Rome Statute, and by allowing the Waki Envelope to be delivered to the ICC prosecutor, and it must now lie in it. Without being glib, Kenyans must be forced to confront the fact that even while the British government and many NATO countries are signatory to the Rome Statute that establishes the ICC, all the investigations into crimes covered by the treaty and the subsequent prosecutions have been in Africa and against Africans. We cannot bury our heads in the sand and pretend that this is not colonialism by another name; the white man taking on the burden of the ungovernable Dark Continent and carrying on his civilising mission in the face of such strong odds. The United States and the Republic of the Sudan are not signatories to the Rome Statute, yet it is Omar Hassan el-Bashir who has been indicted for his government's role in the Darfur while George W Bush, former Secretaries of State Colin Powell and Condolleeza Rice, and US military commanders in Iraq and Afghanistan walk Scot free.
It is not unreasonable to wonder at how Uhuru Kenyatta, William Ruto, Francis Muthaura or Joshua Arap Sang ended up in the cross-hairs of the ICC prosecutor and why Prime Minister Raila Odinga and President Kibaki did not. After all, the cause of the violence was the result of the presidential contest. It is also not unreasonable to ask whether the ODM candidate's call for 'mass action' was the spark need for the violence to erupt. It is not unreasonable to question whether the incumbent instructed the security forces to ensure a certain outcome, especially after he ensured that allegedly loyal people were appointed to the disgraced Electoral Commission of Kenya. It is unreasonable to presume that between now and election day, President Kibaki's only obsession will be the rescuing, especially, of Uhuru Kenyatta from the errant attentions of the ICC. Either Mr Abdullahi presents proof of such an obsession or he issues an equally unequivocal apology to intelligent Kenyans who so enjoy his magazine. You cannot reduce such a complicated matter to such simplistic terms.