Thursday, October 09, 2014

The Age of Ideas.

I cannot imagine what went through the President's mind when he was sitting in that court room at The Hague. All those hours spent flying there and then listening to men and women speak about him, about his government and how they feel about him without being allowed a word in edgeways or an indication of what the court would decide. Those who have had to wait for decision over which they had little control must be able to relate to the President and even if their feelings about him are conflicted, they should be able to sympathise with him.

When he was first named as a suspect there were many that reacted with a touch of Schadenfreude, taking a perverse pleasure at the sight of the then Deputy Prime Minister and Minister for Finance being treated like a criminal. There were others who were outraged at the idea that a prosecutor in a foreign court would dare to charge our Deputy Prime Minister with such heinous crimes over which he couldn't possible have had a hand in. But it has been four years and much water has flowed down the Rubicon since then.

We will never know whether there has been a concerted conspiracy in the highest levels of the government to stymie the ICC investigations in Kenya. What we do know is that the longer the matter has hang fire, the more precarious the Office of the Prosecutor's position has become. It is now accepted, even in the corridors of the ICC, that Luis Moreno-Ocampo did a piss poor job in his investigations, choices of suspects, choices of witnesses, pre-trial and trial strategies and in his choice of words. Whether there has been non-co-operation by the Government of Kenya or witness tampering by the accused, Mr Moreno-Ocampo's, and now Ms fatou Bensouda's, cases were a houses of cards that would collapse under the weight of their own infirmities.

Kenya's cases are unique. Without a doubt heinous crimes were committed. Without a doubt there are hundreds of thousands of victims. And without a doubt the Government of Kenya, civil society and the International Criminal Court served the victims poorly. But the crimes that were committed were not committed in the same manner that the crimes committed in Rwanda in 1994 or Bosnia in 1992 - 1995. It was a civil conflict without clear rebel armies at war with the forces of the State. There was no overall commander. There were no decisive battles. Massacres took place, but there were no overt organisers of the massacres. Mr Moreno-Ocampo spoke of a "network" but even he must now admit that the "network" idea will no longer hold water in the absence of Maj Gen (Rtd) Hussein Ali or Amb Francis Muthaura in the list of suspects in the dock.

Political conflicts in Kenya have always led to severe violence. It happened in 1992 and it happened again in 1997. 2007/08 may have been the worst but it did not differ significantly from the 1992 or 1997 clashes. The solution, despite the ardent campaigning by civil society and the overt and covert interference of key European governments and the United States, should have been a political one. Which was what the Grand Coalition Government should have been. Reconciliation would only come about if the people who had been displaced were restored to their properties, and where murderers and rapists were identified by victims were prosecuted and convicted or the victims given a chance to forgive their attackers. The campaign to turn the political problems of 2007/08 into legal ones has merely postponed the day of reckoning.

Uhuru Kenyatta and William Ruto have a chance to set the clock back and solve the seemingly intractable problems of 2007/08 ironically because of their parliamentary tyranny of numbers. They will have to overcome the objections of the hardliners in their alliance. They will have to build a unity government in all but name so that the broadest coalition of political interests can be accommodated in settling our political problems once and for all. It is the only way that the politics of marginalisation will end and we can enter the age of the politics of ideas.

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