How the search for accountability aborted

The World Day for International Justice marks the anniversary of the entry into force of the Rome Statute which established the International Criminal Court on July 17, 2002.

This was a culmination of efforts by the international community to find a mechanism for seeking justice over the most egregious violations of human rights known to mankind.

Kenya is before the ICC owing to atrocities committed during the 2007-2008 post-election violence. The interaction between Kenya and systems for prosecution of international crimes within the framework of complementarity has been fraught with challenges.

However, justice for victims cannot be sought through prosecutions alone. Truth-seeking, institutional reform, reparations and acknowledgement are part of a process for ensuring non-recurrence.

The process in Kenya has focused entirely on prosecutions without listening to the demands of the victims. The victims should be at the centre of the decision-making processes relating to the search for accountability.

While they duly demand accountability through the courts, they also want their livelihoods restored and institutions reformed so that they can access justice.

Complementarity envisages the ICC as a court of last resort when domestic measures have failed. This needs to be borne in mind while considering criticism about selective prosecution.

Kenyans indicted by the ICC seek to portray themselves as suffering under the yoke of neo-colonialism. They gloss over the continued attempts to initiate domestic proceedings. Since signing the National Accord in 2008, the political elite spurned three opportunities to set up a mechanism for domestic accountability.

Spreading misinformation

The events leading up to the indictment of Kenyan suspects at The Hague clearly demonstrate that the political class was not willing to bring to justice perpetrators of post-election violence. Only when it became clear that this would not happen did the ICC prosecutor take action.

Politicians subject to the process continue to spread misinformation about international justice and have cast themselves as victims of a conspiracy.

Their activities, in addition to shuttle diplomacy and efforts to ascribe jurisdiction for international crimes to the East African Court of Justice and the African Court, are part of a wider scheme to escape accountability and prepare the ground for non-cooperation with the ICC.

Because justice is not limited to criminal justice but a comprehensive approach embracing, truth, reparations and reform, it’s important to think beyond prosecutions and catalyse processes that would lead to the outcome of a credible truth commission report to deal with the history of repression and human rights abuse that has persisted for decades.

Further, the ongoing reforms at the Judiciary and the efforts to reform the police need to be stepped up to secure key institutional pillars of governance, which can guard against systematic human rights abuse in the future.

The victims of the post-election violence continue to suffer in camps, their livelihoods having been taken away, and prospects for justice dwindling. Renewed efforts are required towards establishing a domestic accountability mechanism to accompany the ICC process.

Mr Gondi works with the International Centre for Transitional Justice.