With The Hague reality sinking in, leaders are in panic mode

Monday November 9 2009


It is very interesting the way our political classes are running helter-skelter since the short visit of one Luis Moreno-Ocampo.

The forces that conspired in Parliament and the Cabinet to shoot down successive attempts to form a Special Tribunal to investigate and try ringleaders of the post-election violence coined a very catchy phrase — ‘Don’t be vague, ask for The Hague’.

Maybe their creativity was inspired by generous amounts of the Haig Scotch Whisky, but now the celebrations have ended rather speedily with the realisation that the Hague is not just some far-off mirage.

The ICC prosecutor hardly allowed the ink to dry on the pronouncement by President Kibaki and Prime Minister Odinga that Kenya would not refer the post-election violence crimes to The Hague before demonstrating how fast he intends to move.

Hence panic stations as those who killed all prospects of an independent local tribunal suddenly move so speedily to try and create one.

It would make good comedy if it were not such a serious affair. In any case, nobody will be impressed by those pathetic attempts to establish a local tribunal in the vain hope that the ICC will be persuaded the Kenya leadership is taking action on mass murderers, rapists and arsonists within its midst.

The ICC will not halt its Kenya investigation merely because some of those in its sights are now party to frantic and belated efforts to hoodwink it into going slow.

Whether we are talking about the government taking over the Bill fronted by MP Gitobu Imanyara to form an independent local tribunal, or trying to circumvent Parliament by merely creating special division of the High Court to try post-election violence cases, all will amount to dishonest efforts to keep The Hague at bay.

Those in power have already shown that they have absolutely no desire to punish those responsible for the violence. And they have strong motivation to want everything swept under the carpet because many of them were either instigators or beneficiaries of the violence.

Fine, let them pretend to have finally seen the light, but the ICC must not let up in its pursuit of those who slaughtered fellow Kenyans.

In fact, if the ICC wants to make Kenya an example on how to deal with impunity, as Mr Ocampo has repeatedly stated, then it must go beyond the three or four persons holding greatest responsibility for the violence.

THIS SHOULD MEAN THAT THE “generals” who commanded the butchering squads should not be spared; especially since there is little prospect of local courts doing anything.

It should also mean that the ultimate political leaders on whose behalf mass murder was committed, should not be spared either. After all those who directed the pogroms did so at the service of their seniors.

And in Kenya we know that the mighty and powerful can always subvert the courts. Kenya remains about the only county in the world where a criminal suspect can actually rush to court and obtain an injunction against being investigated.

One thing the ICC should not do is listen to those silly calls for any investigation to start with those who manipulated the election results in favour of President Kibaki. The ICC has never been and will never be an election petition court.

The argument, in any case, is self-defeating. It amounts to an admission that “yes, we committed mass murder, but that was in response to a stolen election”.

If anyone tries such warped logic again, then they should also be brave and honest enough to stand up and pronounce their leadership in the atrocities.

The same should apply to anyone who might try to justify any atrocities on the basis of self-defence or reaction to the initial violence.

This is also a principle that should apply to those seemingly imbued with the spirit of forgiveness and reconciliation. Forgiveness and reconciliation must remain vital processes in the continuing efforts towards national healing.

Indeed the justice mechanism by itself is no solution to the ethnic hostilities that divide the country.

But at the same time, one cannot stand up and demand blanket amnesty for unknown crimes. Forgiveness must be preceded by confession.

Those suggesting forgiveness and reconciliation must first stand and give honest and truthful accounts of the crimes they may have committed.

Only then can the process of healing start. But in the absence of any such gestures, Godspeed to Luis Moreno-Ocampo.