The Ocampo Six and the Kapenguria Six couldn't be more different

What you need to know:

  • Bildad Kaggia fell out irreconcilably with Jomo Kenyatta but remained strong on his political principles till his death in 2005.
  • Where the Kapenguria Six had witnessed the birth of a nation; the Ocampo Six came dangerously close to its disintegration.
  • The ICC could take up a matter, even where investigations and prosecutions are underway if the state is unwilling or unable to genuinely carry out the investigations and prosecutions.

On the night of 20 and 21 October 1952, the colonial authorities in Kenya carried out a mass arrest of suspected Mau Mau and Kenya African Union leaders (KAU).

Governor Baring had signed the Emergency order on that evening, and Operation Jock Scott was in full force.

Six prominent figures were locked up and later transferred to Kapenguria. Jomo Kenyatta was the most senior and most important of them all, and he shared his fate with Kung’u Karumba, Fred Kubai, Bildad Kaggia, Paul Ngei and Achieng Oneko.

Some of the Kapenguria Six died penniless and some were even bankrupt. Some became enemies of the state, others were forgotten, others struggled in politics until their death.

Whatever the aftermath, their lives met and were changed at Kapenguria.

Kung'u Karumba was arrested for assisting a proscribed society. He later became a businessman and mysteriously disappeared in 1975, after meeting Idi Amin in Uganda during a business trip.

Fred Kubai died in 1996. For more than ten years, his three wives and many children fought tooth and nail to inherit his property. In 2006 the family was fighting for a copy of his will, hoping for a second liberation.

Paul Joseph Ngei was a journalism graduate from Makerere University and acted as the prisoners’ spokesman. He was a writer and served as a cabinet minister throughout the Kenyatta government from 1964 to 1978, and under Daniel arap Moi from 1978 until 1990, when he was ruled bankrupt by court and had to give up his parliamentary seat. He died in 2004.

Bildad Mwaganu Kaggia was a man of values, a nationalist, freedom-fighter, and politician who wanted to serve the poor and landless people.

Kaggia joined the Army and studied short courses on journalism, trade unionism and political science. His army experience made him aware of the evils from racial discrimination and colonialism.

He fell out irreconcilably with Jomo Kenyatta but remained strong on his political principles till his death in 2005.

FIFTY-FIVE YEARS LATER

Ramogi Achieng Oneko, born in Bondo in 1920 became the first Nakuru Town MP in independent Kenya and Kenyatta appointed him Minister for Information, Broadcasting and Tourism. In 1969, after the Kisumu incident, Oneko was arrested and spent six years in jail.

He returned to politics until 1997, when he lost his Rarieda seat. He died in 2007, the last survivor of the Kapenguria Six.

Fifty-five years after the events of Kapenguria, the country was in flames and another “six” emerged in Kenya’s political scenario. This time they were the Ocampo Six.

The historical setting was radically different. The country that had been built on the foundations of the Kapenguria Six, among many other liberation martyrs, was crumbling down.

Where the Kapenguria Six had witnessed the birth of a nation; the Ocampo Six came dangerously close to its disintegration.

On April 16, 2016, during the ICC “prayer rally” at Afraha Stadium in Nakuru, President Uhuru Kenyatta vowed that Kenya should never take up the International Criminal Court process in future.

Lamenting on the agonising process he and his deputy, amongst the other suspects, had endured, he said, “it has been a painful journey for all of us. Many lost their lives and many properties were destroyed. As leaders, we have said we will never go back to that route.”

HIJACKING JUSTICE

The President’s statement is consoling, but simultaneously chilling. It is consoling to note that the President, who has endured a painful legal battle at the ICC, would not wish any other Kenyan to go through the same process.

Indeed, he has promised that justice to Kenyans will be accorded by Kenyans. “We have our own courts; we will sort out our own issues.”

The President was actually making reference to the principle of complementarity, one of the key principles consecrated by the Rome Statute, the document that established the ICC.

The essence of this principle is contained in Article 17 of the Rome Statute. The ICC cannot take up a case in which investigations or prosecutions are being undertaken by the relevant state.

For instance, if Peter was taken to the ICC for alleged commission of crimes against humanity, and it is determined at the ICC that Peter’s country is currently investigating or prosecuting him, then the ICC, by its own law, must shy away from Peter’s case.

There is an exception, however, to this provision. This exception aims at defeating what is called hijacking of the justice process, to wit, a state initiating investigations simply to prevent the “interference” of the ICC.

The ICC could take up a matter, even where investigations and prosecutions are underway if the state is unwilling or unable to genuinely carry out the investigations and prosecutions.

"FRIVOLOUS CASES"

To determine what is meant by “unwilling”, it is necessary to look at the same Article 17 for clarification.

If the investigation and prosecution at the state are carried out for the purpose of shielding a person from criminal responsibility under the ICC; if there is an unjustified delay in the proceedings which is inconsistent with the necessities of justice; if there is a lack of independence and impartiality in bringing the person to justice, the ICC may determine that the state is unwilling to genuinely carry out the proceedings.

Then, the ICC may proceed to take up the case.

By putting his weight on our judicial system, the President is in effect promising that our courts will be independent and impartial, there will be no unjustified delay and there will be no frivolous cases whose sole purpose is to defeat justice.

If these are the promises underlying the President’s solemn oath at Afraha stadium, then we have cause to rejoice.

But there is a twist to the President’s promise that chills the spine. This twist will be unravelled in our blog next week.

Dr Franceschi is the dean of Strathmore Law School. [email protected], Twitter: @lgfranceschi