Maina Kiai has the best articulation I have seen of the problems with the response to the naming of the ICC suspects at his blog this week under the title “After the Ocampo List: Let’s Get the Facts Straight”:
The Ocampo list is finally out and as expected, all manner of reactions are coming out, many of them quite frightening. And many of them are totally wrong. Predictably the attempts to turn this from individual responsibility to alleged community persecution are in high gear. This is a constant for the Kenyan political elite who enjoy the benefits of power, status and privilege as individuals but as soon as trouble starts, they try to turn it to a community issue… More insidious is the idea that non-politicization by the ICC must mean that all ethnic groups must be represented on the list without regard to the evidence of criminality . . .
For me, one of the worst elements coming out is the idea that Mass Action is a crime. It is not, it can never be. In fact, it is a right, guaranteed by our new constitution, and also by international law. Mass action is NOT a call to violence. Mass action is not saying “destroy and demolish”. Mass action is simply peaceful protest. I bet that had this been allowed in 2007/8, we would have had less violence than we eventually did. It is a vent – a legitimate vent – for people to peacefully express their views and objections.
Yes, it can turn violent, and it does so in many cases, not just in Kenya but across the world. And when it does, the State must restore security and safety in a manner that is appropriate. Not by shooting people in the back. Not by suggesting that everyone out in the streets is a criminal. Not by raping women indiscriminately.
We need to protect and defend the idea of Mass Action and do so fiercely and jealously. Kenya’s move from total autocracy and dictatorship owes much to Mass Action – from 1990 when Jaramogi Odinga, Ken Matiba and Charles Rubia called for Mass Action to protest the one party state; to the mass action of the mothers of political prisoners in 1992; to the mass action led by Kenya Human Rights Commission from 1995 against extra judicial executions and against the state sponsored violence in the Rift Valley and Bungoma; to the mass action in 1997 on the need for a new constitution. Mass action has been a tool, a non-violent option, to spur change.
Now it is being called a crime by those who fear being held accountable for their own REAL crimes. If society cannot have a vent for peaceful grievances, then the likelihood of resorting to violence rises. So we must not succumb to purely political propaganda that wants to equate calls for mass action with criminality. . . .
It is not too late, nor too expensive, for some bit of justice here, it seems to me. While it is a crime in itself that no one is being prosecuted directly for the election crimes, it seems to me that the prosecution of the police commissioner is at least a prosecution of the direct state actor in charge of enforcing the election theft by suppressing the inevitable protests. Beyond that the ethnic-related militia killings addressed in the other Ocampo charges are exactly the kind of crimes against humanity that surely do not have to be tolerated in the twenty-first century in a country like Kenya, irrespective of election competition. Far from doing anything for the cause of electoral justice, Kalenjin militias being turned against Kikuyus in the Rift Valley helped solidify Kibaki’s hold on power after he was sworn in such openly questionable circumstances.
- Kenya and the international court: Will they go quietly? (economist.com)