ICC trials risk pushing Kenya back to the brink

Former South Africa president. Courts cannot end civil wars. This was the ringing verdict by Mr Mbeki and Ugandan scholar, Professor Mahmoud Mamdani. PHOTO | AFP

What you need to know:

  • In the wake of the 2008 National Accord and Reconciliation Agreement, a military solution to the Kenyan problem has not been in the cards.
  • Currently, South Africa’s Parliament is set to debate a decision to withdraw from the court because it has “lost its direction”.
  • Cumulatively, an estimated 5,000 people were killed and no less than a million others displaced during the 1991-1993, 1997-1998 and 2007-2008 waves of politically motivated violence.
  • Kenya’s elite should focus on reconstruction, not on ICC’s divisive processes.

Courts cannot end civil wars. This was the ringing verdict by two eminent African personalities – former South African President Thabo Mbeki and Ugandan scholar, Professor Mahmoud Mamdani (New York Times, February 5, 2014).

A year later, a rancorous “Ruto-fixers” debate in the Kenyan public sphere is turning the spotlight on the impact of the International Criminal Court (ICC) on Kenya’s delicate peace.

This debate reveals the ugly underside of the court’s the eye-for-an-eye notion of justice.

Ideologically, the ICC intervention in Kenya epitomises the trend by Western powers after the Cold War to push for the model of the Nuremberg Trials in 1949 to end African conflicts.

But in regard to peace-building, ICC’s Nuremberg model has become as messy as the proverbial surgery with an axe.

Certainly, ICC can never bring a reconciliatory closure to civil wars.

In Kenya, its hard-nosed pursuit of victims’ justice is re-igniting inter-ethnic grievances, which risk pushing East Africa’s pivotal nation to a new bout of politically driven violence.

Kenya’s 2008 violence neither ended in a revolution – as some had hoped – nor in a military victory of the regime. Instead, Kenyans opted for a negotiated political settlement.

In the wake of the 2008 National Accord and Reconciliation Agreement, a military solution to the Kenyan problem has not been in the cards.

This paved the way for a power-sharing government in which “victims” and “perpetrators” worked together.

And in 2013, they, again, went to the polls to elect a post-bellum government.

DIVISIVE TWIST
But the Waki Report on post-Election Violence added a divisive twist to the political settlement.

Its controversial secret list of alleged perpetrators has always been assumed to be the source of “the Ocampo six”.

But was it? Be that as it may, Waki plunged Kenya into the murky waters of international criminal justice — shunned by mightier powers like the United States, China, Russia and India.

Peace and reconciliation processes in South Africa, Mozambique and Uganda before the ICC came into existence were shielded from the crusade for justice.

Kenya was not lucky. Some of its international partners are keener on funding the ICC process than peace consolidation at home.

Because of its negative impact on peace, many Africa Union member states are planning to withdraw from the ICC.

Currently, South Africa’s Parliament is set to debate a decision to withdraw from the court because it has “lost its direction”.

But ICC’s focus on the agenda of African leaders has tended to conceal its inadequacies as an instrument of global peace.

For starters, ICC seems clueless about civil wars.

While human rights may be universal, “human wrongs” have a specific, and often complex, context.

Civil wars are not purely criminal situations. They signify a breakdown of political order, thus demanding collective rather than individualised approach.

OVER 4,000 KILLED
Second, ICC’s human rights fundamentalism has not helped the situation.

It has inadvertently turned the court into a new battleground in the intra-elite power struggles.

The court is no longer perceived as an honest broker and impartial arbiter in conflicts. To its critics, it is an instrument of regime change and neo-colonialism.

The court’s judicial processes are no longer beyond reproach.

It has been accused of selective and shoddy investigations and of out-sourcing the procurement of witnesses to partisan human rights lobbies.

Third, in Kenya’s ethnically polarised society, ICC’s unbending crusade for victims’ justice is a call to revenge.

In this configuration, the perpetrator has no life or place in the new political order.

Yet, this purist line between victims and perpetrators can be false and unjust.

The idea of one as wholly innocent or wholly guilty is a fiction.

Kenya’s cycles of violence in 1991-2008 confirms that victims and killers have traded places and both have a narrative of violence. Criminalising perpetrators is not a solution.

Fourth, ICC has a blinkered view of victims in Kenya.

Cumulatively, an estimated 5,000 people were killed and no less than a million others displaced during the 1991-1993, 1997-1998 and 2007-2008 waves of politically motivated violence.

ICC myopic focus on the 2007/2008 victims cannot bring closure to Kenya’s displacement problem.

Paradoxically, ICC is producing its own new genre of “victims”.

By not investigating or committing to trial William Ruto’s then superiors in the ODM Pentagon and withdraw all other cases, ICC has unwittingly turned Ruto and Joshua arap Sang into political “victims”.

The Kalenjin community collectively shares their victimhood.

FOCUS ON RECONSTRUCTION

In the light of this, the Kenyan situation calls for a political solution that produces neither victims nor losers.

An ICC-driven legal process cannot guarantee lasting peace. Like the Hutu and Tutsi after Rwanda’s genocide, Kenyans have to live together as survivors of the 2008 violence in a society free of revenge.

Like South Africa during the crucial transition from Apartheid to democracy in the 1990s, Kenya has to chart a new path in restorative justice.

Pretoria’s complex negotiations involving the ruling National Party (NP), the African National Congress (ANC) and other smaller parties and interests under the Convention for a Democratic South Africa (Codesa) ended apartheid, restored order under a new democratic constitution.

As Mbeki and Mamdani rightly observe, the Codesa process suspended the question of criminal responsibility until the underlying political problem has been addressed. This is the only, and the surest, way for consolidating peace.

The ICC trial has denied Kenya its Codesa moment leading to a permanent solution to decades of political violence.

Notably, Kenya’s 2008 scenario is not very different from other civil wars in America, Northern Ireland, Russia and Nigeria.

The difference is that after these civil wars, the ruling elite have wisely ruled out court trials, opting for reconstruction. Kenya’s elite should focus on reconstruction, not on ICC’s divisive processes.