It
should come as no surprise that opponents of The Hague trials of
Kenyans accused of international crimes has fizzled out. They began by
arguing that it was an assault on our sovereignty as a nation; that it
was a power-grab by the West to dictate how we would govern ourselves,
especially when it comes to investigating "international crimes" and how
to punish those found guilty. That particular line failed to get
traction, especially after the Committee of Experts sneakily, in some
minds, added clauses to the Proposed Constitution that effectively made
all treaties Kenya has signed and ratified part of the law of Kenya and,
generally, international law. Their next plan of attack was that since
The Promulgation, Kenya had undergone a rapid transformation, especially
in it Governance, Justice, Law and Order Sector. The reforms undertaken
in the Judiciary, they argued, were well-underway and would guarantee a
free and fair trial for the men accused of being behind the horrific
crimes of 2008. But because many opponents of The Hague Process also
opposed the creation of a "local mechanism", that argument has fallen by
the way-side too. Now they have latched on a variation of the
Sovereignty Argument: that Kenyans must be given an opportunity to
accept or reject the two leading ICC suspects at the hustings and that
should the tow be elected to the presidency as President and Deputy
President, Kenyans will have declared for all the world to see that they
have washed their hands of the crimes committed in the aftermath of our
last general election and that Kenyans do not for one minute believe
that Messrs Kenyatta and Ruto are guilty of the crimes they have been
accused of.
Philosophically, many Kenyans are appalled by the idea that an international court that does not enjoy any legitimacy in the eyes of Kenyans would be tasked with the duty of unmasking the truth of the crimes committed in 2008. In our minds, we have abdicated our duties to one another by refusing to honestly difficult confront difficult truths, such as that Messrs Kenyatta and Ruto may very well be guilty of the crimes they have been accused of. Mr Justice Waki must have confronted these truths and in his estimations, regardless of what Kenyans did, the right course would have been for the establishment of a separate judicial mechanism to handle the crimes or, in the alternative, an honest, outside force would have to do it for us. We are where we are today because we chose neither; instead, a timetable made by Justice Waki's Commission, forced the hand of the man we had reposed faith in to shepherd the healing process and he gave the International Criminal Court the go-ahead to investigate and try the persons accused of being responsible.
This long lead in brings me to whether the choice Kenyans are being offered today can legitimately be made. Whether Messrs Kenyatta and Ruto stand in the 2013 general election says nothing of their guilt or innocence and those arguing that it does are attempting to take Kenya back to the days when guilt or innocence was immaterial to offering succour to the victims of crimes in our system. No one doubts that crimes were committed in 2008 and no one doubts that in some specific instances these crimes were committed after careful planning and prosecution. What is in doubt is whether Messrs Kenyatta and Ruto are the only men responsible for the crimes and whether they alone should stand trial. It is not in doubt that they are politicians of national standing and with huge constituencies and that their supporters want them to stand in the 2013 elections. They have ignored the warnings of doom and gloom that should they stand, Kenya shall lose, especially if by their victory Kenya becomes the subject of economic and political sanctions from world powers. They are right to ignore those warnings for they say nothing of their guilt or innocence.
The Rome Statute, our own Constitution and the laws made under it declare a man's innocence until a court rules otherwise. Until they are convicted - if they are convicted - Messrs Kenyatta and Ruto have as much right as the next man to pursue their political ambitions. But let us not pretend that they are accused of petty crimes or that they come into the elections with clean hands. The crimes for which they are charged with are crimes that the international community has declared beyond the pale of civilisation. Messrs Kenyatta and Ruto are not ordinary politicians. With a word they are capable of bringing this country to its knees because of the commanding constituencies in their respective corners. They want to rule? Fine. Should they win, they shouldn't pretend that they will happily co-operate with the International Criminal Court. What many Kenyans expect, especially their constituencies, is that if they win, and if the trials proceed as expected, they will use the power and might of the Executive to resist every step of the way being held accountable for the crimes they are accused of committing in 2008. What they will conveniently forget are the victims of the crimes they are accused of. The hundreds of thousands who were illegally dispossessed of their land and property, the thousands who were murdered, maimed, crippled, raped and tortured, and the billions in shillings lost in public and private property will be a mere blip on their radars. Whether we want to admit it or not, the plight of the victims is no longer our priority. The elections and the fate of the two are. We have moved on.
Philosophically, many Kenyans are appalled by the idea that an international court that does not enjoy any legitimacy in the eyes of Kenyans would be tasked with the duty of unmasking the truth of the crimes committed in 2008. In our minds, we have abdicated our duties to one another by refusing to honestly difficult confront difficult truths, such as that Messrs Kenyatta and Ruto may very well be guilty of the crimes they have been accused of. Mr Justice Waki must have confronted these truths and in his estimations, regardless of what Kenyans did, the right course would have been for the establishment of a separate judicial mechanism to handle the crimes or, in the alternative, an honest, outside force would have to do it for us. We are where we are today because we chose neither; instead, a timetable made by Justice Waki's Commission, forced the hand of the man we had reposed faith in to shepherd the healing process and he gave the International Criminal Court the go-ahead to investigate and try the persons accused of being responsible.
This long lead in brings me to whether the choice Kenyans are being offered today can legitimately be made. Whether Messrs Kenyatta and Ruto stand in the 2013 general election says nothing of their guilt or innocence and those arguing that it does are attempting to take Kenya back to the days when guilt or innocence was immaterial to offering succour to the victims of crimes in our system. No one doubts that crimes were committed in 2008 and no one doubts that in some specific instances these crimes were committed after careful planning and prosecution. What is in doubt is whether Messrs Kenyatta and Ruto are the only men responsible for the crimes and whether they alone should stand trial. It is not in doubt that they are politicians of national standing and with huge constituencies and that their supporters want them to stand in the 2013 elections. They have ignored the warnings of doom and gloom that should they stand, Kenya shall lose, especially if by their victory Kenya becomes the subject of economic and political sanctions from world powers. They are right to ignore those warnings for they say nothing of their guilt or innocence.
The Rome Statute, our own Constitution and the laws made under it declare a man's innocence until a court rules otherwise. Until they are convicted - if they are convicted - Messrs Kenyatta and Ruto have as much right as the next man to pursue their political ambitions. But let us not pretend that they are accused of petty crimes or that they come into the elections with clean hands. The crimes for which they are charged with are crimes that the international community has declared beyond the pale of civilisation. Messrs Kenyatta and Ruto are not ordinary politicians. With a word they are capable of bringing this country to its knees because of the commanding constituencies in their respective corners. They want to rule? Fine. Should they win, they shouldn't pretend that they will happily co-operate with the International Criminal Court. What many Kenyans expect, especially their constituencies, is that if they win, and if the trials proceed as expected, they will use the power and might of the Executive to resist every step of the way being held accountable for the crimes they are accused of committing in 2008. What they will conveniently forget are the victims of the crimes they are accused of. The hundreds of thousands who were illegally dispossessed of their land and property, the thousands who were murdered, maimed, crippled, raped and tortured, and the billions in shillings lost in public and private property will be a mere blip on their radars. Whether we want to admit it or not, the plight of the victims is no longer our priority. The elections and the fate of the two are. We have moved on.
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