Sunday, June 02, 2013

None speaks for the victims.

It might very well be that the impending, but troubled, trials of Uhuru Kenyatta and William Ruto for alleged crimes committed in 2007 and 2008 at the International Criminal Court is an international conspiracy designed to weaken the Government of Kenya in favour of Western political and economic interests. But this would require that these governments had a contingency plan after Raila Odinga's loss in 2007 to Mwai Kibaki in that year's disputed general election. This would mean that governments that could not prepare for the fall of the Berlin Wall or the events of 9/11 somehow managed to put together the most comprehensive and subtle "regime-change" plan in the aftermath of the 2007 polls. The myth of Western governments' power to effect large-scale political change in any part of the worldd has been largely overwrought.

Ahmednasir Abdullahi's assertions in the Sunday Nation must, necessarily, be challenged (African Union rightly saw what ICC cases are all about.) This author does not believe that the post-election violence cases should have been tried at The Hague. But Kenya has proven time and again incapable of resolving political problems justly or fairly. Since the assassination of Pio Gama Pinto, Tom Mboya and JM Kariuki, political challenges have always been resolved by sweeping everything under the carpet, leaving innocent victims to fend for themselves. Since the first land clashes in 1992, election-related violence has been dealt with in a cavalier fashion. Those who were displaced in 1992 and 1997 are yet to find new homes or to be restored to their old ones. Those who were displaced in 2007/08 remain in limbo. When the Waki Commission suggested that a separate judicial mechanism be established to deal with the 2007/08 crimes, Kenyans thought that Mwai Kibaki's government would do the right thing. Kenyans remain disappointed to this date. The recent happenings in the Judiciary regarding the Goldenberg-related cases confirms the suspicion that th reforms in the Judiciary are yet to take root, let alone change the mindset of judicial officers charged with keeping the new constitutional faith.

The African Union resolution to send back the Kenyan cases to Kenya is laudable but is founded on the wrong motivation. The ICC has not done much to dispel the suspicion that it is an anti-Africa court. While the war crimes and human rights abuses of the Western powers continue to go unpunished, it is hapless Africans who continue to be prosecuted at the ICC. The few Europeans tried at international level happen to be leaders of nations that for one reason or the other have run afoul of the interests of powerful Western governments, especially the United States, the United Kingdom, Germany and France. Even the fact that African states acceded to the Rome Statute cannot dispel the idea that the ICC is designed to cower Africa.

However, what the African Union proposes, in its year of jubilee, is not in response to the apparently racist underpinnings of the ICC process. Rather than face head on the continuing political inequalities of African states, in which the weak continue to be abused, the African Union wishes to perpetuate a system that has been discredited the world over. By demanding that the Kenyan cases at the ICC be sent back to Kenya to face a still-distrusted judicial process, the AU does not side with the victims of the violence but with the accused who happen to be capable political leaders in their own right. While Mr Abdullahi is right that the Government of Kenya had no direct hand in sending the cases to The Hague, it is without doubt because of the government's intransigence that ensured the triggering of the ICC process.The government's unwillingness to deal with the problem in 2008 all but guaranteed that as a signatory to the Rome Statute could be used to set things right.

It remains a closely guarded secret what was contained in the Waki envelope. But it is increasingly uncertain that Luis Moreno-Ocampo's "investigation" is falling apart. When Francis Muthaura's trial was dropped, it seemed like things were truly falling apart. Now with the drip-drip-drip of witnesses recanting, the cases against Messrs Kenyatta and Ruto look increasingly weakened. If the Western powers truly had a hand in the trials of the two, would they allow the investigation to be so shambolic? Would it not be in their interests to ensure that witnesses stayed put and that their families were protected? The trials may or may not go forward, but it is almost certain that with the continuing withdrawal of the witnesses, the likelihood of the accused being acquitted continue to grow. The interference of institutions such as the AU or the diplomatic service only serve to complicate an otherwise straightforward legal matter. But in the grand scheme of things, hundreds of thousands of Kenyan victims continue to receive the short end of the stick from their government, the ICC and the formidable AU.

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