I am concerned that a move by the ICC to try Uhuru, Ruto and Sang “locally” would needlessly cost additional lives

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The Kenyan government, after years of lack of success in its various diplomatic efforts to block the ICC prosecutions of key figures in the political killings involved with the 2007-08 elections, achieved a potential breakthrough at the most recent AU meeting in Addis.  By getting a section of African strongmen and politicians to agree that the ICC shoe that they had promised to wear was pinching too tightly when it was not deferring to them as Heads of State as opposed to only pursuing lessor suspects out of power, the Government of Kenya raised the stakes for those nations that advocate a law-based international order and for the ICC as the only institution that remains with any potential to substantively express any tangible disapproval of the post-election murder and mayhem in Kenya in 2007-08.

It is in this context that the ICC will have to decide whether or not to accept a panel recommendation to move the trials from The Hague to Kenya or Tanzania.

Let me say that I am no fan of the decision to locate the ICC in The Hague in the first place.  Nothing against the Dutch and I do understand that The Hague has symbolism as a seat of the international law of nations.  Of course the criminal trials of individuals is something quite different and if anything in some ways undercut by the association.  We are confronted now with a situation in which the indictees have taken power in a member state–in a campaign initiated in the context of their defense to the ICC charges–and wish to avoid trial by mutating the individual criminal charges into a matter of the international relations of sovereign states.

So by all means move the Court to Botswana or Belize or some other more suitable location when it becomes logistically rational to do so, but these trials are supposed to be about the loss of life and limb in the “extra-electoral” context of the Kenyan fight for political power and it makes no sense to physically conduct the trial in such a way as to put more lives in the same type of jeopardy.

First, as a general proposition, witnesses against the President and Deputy President will never be able to live in safety in Kenya for any time in the foreseeable future after being identified and choosing to testify (they may wish to accept the danger of living in Kenya after testifying but this should not be asked or expected of them); this is the cold reality that should be readily evident to anyone who has paid attention to politics in Kenya over the years.  If it is understood that witnesses cannot testify in Kenya then why split up the trials over more than one location?  This process has already taken too long to no one’s benefit and supposedly the ICC has problems with resources and funding and a big backlog of cases already.

Second, estimates of the loss of life related to the most recent Kenyan elections with all priority on “peace” or stability over all else were still more than 500 people.  The police made extra-legal pronouncements restricting lawful civic expression and assembly; the country was basically shut down, the military was deployed and people were shot for breaking no law.  A trial in Kenya would be extremely expensive and quite dangerous by any informed reckoning.  The suspects on trial would be in charge of the “security” forces.  How many innocent lives will be lost for this?  No one can know ahead of time but it is grossly irresponsible not to count on some people who have no role in the trials dying for holding them in Kenya.

The whole point of the ICC is that it is “international”.  Thirty three other nations in Africa beside Kenya are members.  The reason for these cases being at the ICC was the tactical decision to vote in the “duly elected” Kenyan Parliament to “don’t be vague, go to The Hague.”  If “The Hague” no longer has the stomach for this, they should declare now that the task is too hard and walk away and make clear that Kenya, in spite of the work of the Waki Commission arising out of the AU-sponsored 2008 post-election settlement and the vote of its own parliament, is a zone of impunity, at least for suspects who arise above a political ceiling on potential accountability.  Otherwise, these trials need to be brought to fruition and be heard and appealed and done with purposeful speed and as few diversions as feasible.

We all know that the crimes alleged happened.  We saw them and heard them and see and feel their effects today.  Those of us who lived through this time in Kenya heard various bits and pieces of the details as these things were happening.  If the suspects or any of them are tried and acquitted then anyone who believes that they are in fact innocent of the roles alleged can celebrate that and all of us can finally mourn justice for these crimes along with the dead.

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