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ICC threatens to derail our fresh start

Saturday February 12 2011



The push for deferral of International Criminal Court cases by the Kenya Government is not an attempt to escape justice. Rather, it is a genuine attempt at building on the new dawn started by the approval and promulgation of a new Constitution.

A deferral is simply an affirmation of Kenya’s new start and a chance to give our new institutions room to flourish. Deferral is not a permanent cessation of ICC action. It is only suspension for one year within which time, if no local mechanism has been set up, then the ICC process can continue.

Kenya ratified the Rome Statute and subsequently domesticated it because the country recognised the important role the court would play in securing peace and respect for human rights across the world. This position has not changed.

Indeed, our country is among a select few who boast a serving judge, Lady Justice Joyce Aluoch, at the court. Justice Aluoch joined the ICC through a competitive electoral process in which the government was a critical player.

All Kenya wants from the ICC is respect for the strides we have made since 2007/2008. During that time we witnessed neighbour rise against neighbour and Kenyan take up arms against fellow Kenyan.

That moment in our nation’s history was characterised by inter-ethnic hatred, wanton destruction of property, bloodletting and death on a scale hitherto unknown in our motherland.


These sad events deeply hurt our national pride and weakened our country’s standing in the region and internationally.

The violence also ravaged our economy and dislodged tens of thousands of families from their homes and abodes, disrupted their means of livelihood and adversely affected the familiar rhythm that previously gave their day to day lives a sense of assurance.

Despite these difficult circumstances, hope remained alive and, with the assistance of our external friends, we were quickly able to recollect ourselves and restore order and peaceful coexistence within our society.

Fortunately, Kenyans rose to the occasion and responded by conducting the most refreshing public dialogue of our time, leading to the writing of a completely new and truly progressive Constitution.

It is this new republic that we are asking be given the chance to correct the mistakes of its predecessor. The new Kenya comes with a new judicial setup that can deliver justice right here at home.

Weak institutions

If the post-election crisis was caused by weak institutions, surely the solution must lie in strong institutions. We cannot strengthen our institutions by going around them.

Happily, the endorsement of a new Constitution has presented us with an opportunity for a fresh start in laying a firmer foundation for a new Kenya through the establishment of new, more credible and more capable national institutions and we should not let the ICC spoil that for us.

The judiciary is exactly this kind of institution. The system will have a new Chief Justice and a vetted Bench, a revamped and constitutionally entrenched office of the Director of Public Prosecutions, and a new Attorney-General.

These eagerly awaited changes are bound to create conditions that favour the formation of a credible and reliable local judicial mechanism capable of comprehensive delivery of justice. A functioning local judicial process will affirm our collective faith in our own institutions as a civilised and sovereign, and reborn nation.

Mwalimu Julius Nyerere once stated that “no nation has the right to make decisions for another nation, no people for another people”.

A Cabinet resolution late last year reaffirmed Kenya’s commitment to the ICC process with primacy of place given to a local judicial mechanism.

Pursuant to that resolution, the President lodged an initiative to lobby the African Union and the African Members of the UN Security Council to support Kenya’s request to defer the ICC cases for a period of one year as the country works to set up a local judicial process.

This mission was successful. The AU Commission has subsequently written to the UN Security Council calling for the deferment of the Kenyan case.

The writer is the Vice-President and Leader of Government Business in Parliament