The ICC: The Bridge To Nowhere
I want to talk about this ICC case because I’ve been reading about it and because it’s bothering me. I’ve been “tweeting” about it this passed week, but I want to do a longer, more fluid post on this issue.
Now, before I began, I do want to say that a lot of people look at the title of this blog and assume that I should never talk about politics, but I fundamentally believe that you cannot separate the political situation on the ground from a country’s economy or business environment and this is especially so in weak states such as Kenya.
The other preliminary point I want to make on this issue is to show in practical terms, why not paying attention to the political winds can eventually affect your bottom line and I will use Moi as an example here. When Moi came into power in 1978, there were many Kikuyus who had thriving businesses. If you look back at what happened to many of them, one could argue that some of these Kikuyus failed to come to terms with the political reality which was about to befall them. They naively believed that Moi, a man who had once been slapped by a junior Kikuyu policeman would come in and allow them to function in the same way that Kenyatta had.
However, had they been more attentive to Africa’s political realities and had they been more honest about Kenya’s tribal animosities, they would have been able to re-align their businesses in a way that would have made it more difficult for Moi and his cronies to bring them down, but many of them refused to confront the reality and they suffered as a result of it.
So, this is why I have come to believe that an honest examination of a country’s political realities are crucial for one’s long-term business planning and maybe even life planning and it is here that I want to begin my discussion of the ICC because this case is a lot more than just a trial. At it’s core, it is about the politics of tribal power in Kenya. A point which Koffi Annan has been unable to fully understand.
I will begin with what I believe will be Mutula Kilonzo’s main argument against the commencement of a full trial at the ICC. If you listened to Kilonzo’s press conference on the news, he essentially provided a road map for what his main argument would be and once again it will come down to the interpretation of a legal statute. In this case, the interpretation of the Rome Statute, which defines the crimes that the court can prosecute people for.
At the press conference yesterday, Kilonzo argued that Rome Statute does not include prosecution for the following crimes: Murder, arson, rape & damage to property. Crimes which presumably defined the post-election violence. However, if you read the crimes listed under the Rome Statute, Mutula is stretching this argument and he really doesn’t have to because it’s a weak argument.
The statute lists four crimes for which an individual could be prosecuted for and they are:
Now, since when does the “crime of genocide” not include murder? Rape, another crime Kilonzo mentions could be seen as a crime of aggression if it took place under the overall chaos of the post-election violence or if it was used as a “weapon” against women who were caught up in that violence. Similarly, violently removing half a million people from their property could easily be seen as a crime of aggression and maybe even as a crime against humanity. So, I was surprised that Kilonzo used what I believe was a weak argument on this issue of statutory interpretation.
However, Mutula went on to say that the only thing the government had done was give the ICC the right to begin a preliminary inquiry as to whether or not the violence in Kenya meets the threshold of an ICC case. I believe this line of argument is much stronger than the first one he used. i.e. Even if they were murders, rapes & arson, did the totality of these acts amount to the crime of genocide? or to crimes against humanity? And here, I actually agree with Kilonzo. I do not think that the violence committed in Kenya amounted, in their totality, to a classic definition of genocide.
If you look at all the African countries that have sought “justice” from the ICC, the acts of violence in those countries was much higher than what we ever saw in Kenya. In fact, all those countries had descended completely into years and years of full blown civil war where the state had ceased to function. Let us examine these cases one by one.
Rwanda: The RPF in Rwanda launched a civil war to remove the Hutu regime of president Habyarimana. In response to this civil war, Habyarimana’s revenge was to exterminate all the Tutsis who he blamed for this war and that was the ignition that launched the genocide. One million Tutsis were killed and after Habyarimana’s death, there was no government in Rwanda. It was complete chaos.
Liberia: There was a very bloody and brutal seven year war there and over 200,000 Liberians were killed. There was no functioning state in that country at many points.
Sierra Leone: The civil war there began in 1991 and didn’t end until 2002. One-third of the population of that country was displaced and hundreds of thousands were killed. It was complete chaos.
Sudan/Darfur: 2 million have been displaced and 500,000 Darfurians have been killed. Is there a functioning state in Sudan? Who knows? in the north you have an islamic government and in the south you have the SPLA and in Darfur, who knows?
Now, in Kenya, 1,500 lives were lost, half a million were internally displaced, but you still have a government and the country did not descend into full scale civil war. The army wasn’t even called in to quell the violence.
The second point on this issue is that in all of the above African cases mentioned, the perpetrators of the violence had either been overthrown, killed or captured while outside their countries. Charles Taylor was in captivity in Nigeria (he tried to escape to Chad, but was caught); Foday Sankoh was captured; Habayrimana & many of his cronies were killed or runaway. So, the ICC never brought “justice” to those countries. It is the Africans themselves who fought to remove these violent offenders, but in Kenya, the accused are STILL part and parcel of the government! They are all still there, enjoying their lavish lifestyles at taxpayer expense.
So, then, you have to ask yourself what it is that Annan hopes to achieve by pushing this trial? Is it merely to shame the Kenyan politicians? If it is, then Annan does not know who he is dealing with because Kenyan politicians are incapable of experiencing shame. They don’t care and shame is not enough to bring them down.
Therefore, my assumption here is that Kilonzo will spend the next three years arguing that the “threshold” for an ICC trial is not applicable to Kenya and by 2012, (while the arguing is still going on) it will be time for a new election and this is where it will become dangerous.
The Kikuyus and Kambas are determined to ensure that neither Raila or Ruto gets anywhere near the seat of power and after the violence in the rift valley, they cannot allow them to control the army or any of the security forces. They simply cannot.
On the opposite end, Raila and Ruto are determined to dismantle what they believe is illegal Kikuyu domination of the country’s power structure.
Now, how will a protracted ICC trial solve this mess?
It is your country. Analyze it for yourself and you don’t need Ocampo or Annan to do it for you.
In my own opinion The ICC will take all their time to go through the cases. the other day A Rwandan was in court in Sweden(was it?) for 1994 genocide. once a warrant is issued by ICC you can try all you can but you will never run forever. Lets say it takes 10 years most of these politicians will be out of work and already indicted to appear for trials n nuts will be getting tighter on impunity or what say you
The ICC is Kenya’s only hope for justice to be done hata kama it will take 20 yrs hoping those responsible will still be alive. If our Govt was to set up local tribunals to settle this issue, nothing will be done to prosecute those culprits in the envelope. How many commissions have been formed & to date nothing has ever been about the results of those commissions. THE ICC IS NOT THE BRIDGE TO NOWHERE BUT SOMEWHERE
nice post… au courant
@Anonymous
This is not grammar class. The important thing is the idea you get out of the story. After all, the whole essence of blogging is the fact that stories are coming from people with something to say but who are not professional journalists.
Are people who are hungry and jobless going to be willing to wait 20 years for justice?
I’m beginning to think that Koffi Annan is pushing this trial because he is more worried about his reputation as a “peace-maker” in Africa and he doesn’t really have a full understanding of the other issues affecting the country.
For example, if you look at the current demographic situation in Kenya and compare it to the growing inequality gap, then you really have to ask yourself if young people are even going to care about an ICC trial. i.e. the growing anger and disaffection of the young cannot be halted by a trial. If the economic situation does not change soon, there is going to be an explosion.
And remember, in Rwanda and all the other African cases, the governments that perpetrated the injustice were FIRST removed through violence. They were not in power when the ICC issued those arrest warrants and thus, justice was not brought to them by that court. They had to fight to get it (literally).
I mean, Odinga is busy renovating his house for $2 million dollars with taxpayer money, Ruto is enjoying his life, Uhuru still has his fathers money…there is a point where people are going to say enough and I don’t think they’re willing to wait 20 years.
KE.
Let’s be honest. In Kenya those who supported ODM and were happy to teach Kikuyu’s a lesson dont want anything to do with ICC or a special local tribunal or anything that means justice for the afflicted. To them all manner of reasons are being floated as to why it’s not wise to pursue justice for the perpetrators. Some of this include renewed fighting (threats) to justifying the actions as spontaneous (unintentional) or that the trials will be unfair (retribution).
Now you have indicated that what happened in Kenya was not large enough or serious enough to warrant ICC attention. At what point does ethnic cleansing or genocide become that. Is it when two people or 100 or 1Million or 100Million people are killed or displaced?
A second more damaging and potentially incriminating defence has been that the ICC should prosecute those who stole elections. This argument says it is because of stolen elections that Kikuyu’s were cleansed from RiftValley. The same people then say a local tribunal wouldn’t be fair despite assurances that the judges will be foreign including the prosecutor. Now that they have succeeded in blocking a local tribunal the next stage is to block the ICC from operating.
Now let’s examine some facts and some history. In 1992 Matiba claimed the election was stolen from him. He did not kill Kalenjins or ask them to be evicted from Nairobi or Central province and neither did he ask people to violently protest uprooting railways and destroying property. Many others notably Kikuyu’s and other pro democracy forces believed he had been robbed but they didnt pick up machetes to kill people.
In 1997 Kibaki was denied victory by systematic rigging by Moi. He chose to lodge an election petition which was rejected on a technicality. He chose the responsible way despite knowing the judiciary was biased against him. Both 1992 and 1997 Kikuyu’s faced ethnic cleansing in the infamous land clashes which then became tribal clashes which in 2008 became ethnic cleansing.
So there is a pattern by people from Rift Valley viewing Kikuyus as enemies who dont deserve to live there. So the so called post election violence is a recurrent event(habit). How should this be stopped (impunity)? There are perhaps three ways.
1. RiftValley MP’s take the lead and discourage violence as a means to achieving the so called historical injustices they have suffered. Here it is important to remember they had one of their own (Pres. Moi) in power for 24yrs. Plenty of time to correct the anomaly.
2. That Kikuyu’s or the govt of the day develope sufficient military deterrence. This would mean very serious violent retribution to anyone inciting or commencing violence so that violence becomes less attractive as a means to agitate for change.
3. That Kenya develope a credible judicial system to procure justice for all regardless of colour, creed, religion or tribe. (Legal and constitutional reforms).
Looking at those three options the first and the last are the preferred options. Violence is always an insufficient strategy because eventually the parties have to come to an agreement. Lets examine the contention that Kibaki stole elections.
First and foremost this is an unproved contention. Remember just before the elections ODM campaigned to have Kivuitu retained with all his commissioners citing experience. They got their wish. It was Kivuitu who declared Kibaki winner unlike their opponent who has a habit of declaring himself winner. Then they invited South African judge Kriegler who produced a report stating no one won or it was impossible to tell. He also revealed election malpractices also on the ODM side. So no one can claim one stole and the other didn’t. Finally those who claim that,- are now in the same govt they were fighting so hard for. NO RAILA NO PEACE well he is a co- president and the Ruto’s are ministers just like the PNU side. So ODM got their justice afterall. For those killed and displaced they havent got justice yet. Yet the children and women killed in Kiambaa were not responsible for rigging let alone the men.
This is why ICC is important. First it is not an ideal option but it’s symbolic value if it can put behind bars those who masterminded the violence. It will be a good deterrent to those who may have the proclivity to do so again. This will make it more difficult for future politicians to use violence as an option. After the ICC has taken up the cases Kenya can embark on a truth and reconciliation track but justice has to be done to stop this impunity.
Jellyfish:
I think option 2 is what they are pursuing. They are still in the process of re-aligning the security forces (I think) so that they can be better prepared for 2012. I said two years ago that this process would take time. I predicted two – three years.
See link here:http://allafrica.com/stories/200807200001.html
The army general who was in charge of the western command, which included Nakuru & the RV was “forced” out and replaced by a Brigadier S. Karanja.
The Kikuyus and kambas now control the security forces and if you are any of these men, can you envision a scenario whereby either Raila or Ruto ascends to power and not only becomes your “boss”, but also ends up controlling the army? The ICC is irrelevant when it comes to this issue of security re-alignments.
I can’t see these guys “allowing” either Raila or Ruto anywhere near the center of power or anywhere near the guns.
The only question I have is how far will the Kalenjins be willing to fight this time and how brutal will the response from the security agencies be? because both sides are fighting for power.
This is not about justice. It’s about power.
This is Kenya. It’s the country where a person who steals a mere k.shs 100/= is beaten to death while those in power stealing billions of public funds are not touched. What was done to Amos Kimunya after the Gerand Regency scandal? Is he not now a Minister? What was done to the master minds behind the Pyramid Schemes? Are they not driving big cars & living in posh estates while some of those who lost all their money to the fraudulent schemes took away their own lives?
How many Commissions have been formed by our Government to investigate Corruption issues & what was done about the findings? Why do some people in our Government own big lands I hear almost half of Kenyan land while we have IDP’S?
The Government will never do any thing about those responsible for the post poll violence. Even if a local tribunal was formed to look into this issue? only the people in the grass root level will be prosecuted. The high & mighty will not & can never be touched. The names of the people in the envelope are also the same people in power. Should we expect them to prosecute themselves & jail themselves.
Right now I know Kenyans are angry with the Government. Kenyans now know that Govt officials dont give a damn about their subjects. They are in Govt just to make their bank accounts bigger.
However, despite Kenyans anger & swearing never to vote for the current political crop again, come 2012 I am sure Kenyans will vote for the same same people back to power & if we are not carefull, another post election violence will take place.
http://i2.cdn.turner.com/cnn/2.....kagame.pdf
KE thought this blurb might interest you
I dont understand this Historical Injustices thing.
First of all British colonial records show Kikuyus were in what is todays Rift Valley long before Independence. Infact a huge portion of the Kikuyu ethnic group is of mixed maasai heritage(NYOKABI and Co). This is only possible if the Kikuyus were in the plains which are in todays rift valley.
During the emergency the British moved the Kikuyu’s into concentration camps and after independence they got resettled in their previous lands.
Secondly no Kalenjin was forcibly removed from his land and replaced with a Kikuyu. Furthmore Kalenjin tribes as well as the Maasai were nomadic for a very long time and had small populations because of this lifestyle. It is only when they started farming their populations swelled giving them an interest and need for land for farming.
Lastly the Kalenjin group have had President Moi for 24 years why didnt he sort out the land injustices, simply because they were none.
If anyone has suffered injustices it is the foreign ethnic groups who have been killed and displaced every 5 years in Rift Valley.
In 2007 600,000 Kenyans most of whom were Kikuyu or Kisii were displaced If that is not Injustice what is.
So please tell me what these historical injustices are.
Sijui:
Thanks for the link on Kagame.
John:
Maybe history in Kenya has not been taught honestly. If you look at this issue of land in Kenya, how did it first begin? It began with colonialism when the British started taking the land from the Kikuyus. The Kikuyu sat on the country’s most fertile land and the British wanted it for their own commercial purposes. This is how the central highlands got renamed the “white highlands” (after the British started stealing the land and occupying it).
Then, this forced land grabbing by the British, is what ultimately sparked the Mau Mau movement. The Kikuyu were forced to fight for their land. However, had any other tribal group in Kenya sat on the most fertile land, they too would have been forced to fight for it like the Kikuyu. It just so happened to be that the best land was in central province and so the fight began there.
Then at independence, Kenyatta was supposed to get the land that was illegally grabbed by the British and redistribute back to the Kikuyus who had been kicked out of that land, but he ended up keeping most of it for himself and his cronies. So, in fact, one could argue that it is the landless Kikuyu peasants today who have been the most aggrieved. First, their land was stolen by the British, then it was stolen by Kenyatta.
After Kenyatta grabbed his portion, the standard issue on land became, “willing buyer, willing seller” . i.e. if you had the money, you could buy land in any part of the country you wished & this is what happened. Kikuyu business people started buying land in the rift valley to farm and they paid for it through this enacted land policy.
So, outside of the corruption of land grabbing, which Moi, Kenyatta & all those guys have engaged in, for the vast majority of Kenyans who own land, theirs has been acquired through this policy of willing buyer, willing seller.
Therefore, I don’t understand how people can claim to have rights to ancestral land in post-independent Kenya. Nobody is going to give those Kalenjins free land (even Moi didn’t give them free land. He just took for himself & for his cronies, like Kenyatta).
So, the fight should be against those few politicians and their cronies who stole the land and got it for free (just like the British had done a generation before). It should not be against the small Kikuyu farmer who owns a 10-acre plot and who paid for it through his sweat and hard work.
The real criminals have been the political leaders.
Yes KE you are dead right on the land issue.
What i heard is Kenyatta bought the land in central and elsewhere at 5 pounds an acre. Thats why that family owns so much land.
Legally would that be called grabbing since he paid for it?
My main argument is that the Kikuyu tribe was in part of what is today rift valley long before the British displaced them into concentration camps. They are records to prove this.
I don’t even think Kenyatta paid for anything. I think he literally grabbed and he was a thief. So, my goal here is not to defend people like Kenyatta. It is simply to point out that the targeted violence in the rift valley was unleashed on the wrong people.