By THUITA MWANGI
Permanent Secretary
Kenya's Ministry of Foreign Affairs
November 3 2009
Africa must prove to the world that she is ready, willing and able to end impunity
On the eve of the visit to Kenya by International Criminal Court Prosecutor Luis Moreno-Ocampo, the debate on bringing to justice perpetrators of post-election violence has failed to address key questions critical to understanding the place and proper role, if any, of the Court in the Kenyan situation.
The controversies that surround issues of jurisdiction of the ICC over nationals of sovereign states, both here in Kenya and in neighbouring Sudan, are nothing new.
And as this debate, which has dominated front pages of the Kenyan media rages, an important milestone event, whose outcome had a special resonance to efforts by the African Union to end the culture of impunity, was taking place in Abuja, Nigeria.
Last week a Special Summit of the Peace and Security Council of the African Union convened to consider and adopt the recommendation of the AU High Level Panel on Darfur. It looked at how best to effectively and comprehensively address the issues of accountability and combating impunity, on the one hand, and peace, healing and reconciliation on the other.
Sovereign right
In examining the Kenya and Darfur reports, many striking parallels cannot escape attention. While one might argue that circumstances that led to international interventions in the two countries are different, the fundamentals, both in the conclusions and recommendations are more or less the same.
Both initiatives are led by Panels of Eminent African Personalities. Darfur was led by former South African President Thabo Mbeki, while Kenya’s post-election crisis was headed by former UN Secretary-General Kofi Annan. They both derived their mandates from the African Union.
Both reports seek to draw a road map on how best the inter-related issues of peace, justice, reconciliation and healing could be addressed.
However, on the key question of the role of the ICC, there is a major divergence between the Mbeki and Annan approaches. In its conclusion on issue of justice and impunity, the Mbeki report completely excludes the possibility of resort to the International Criminal Court. In fact, it neither considers the ICC, even remotely, as an alternative nor substitute to existing internal criminal justice system in Sudan.
In the only paragraph on the International Criminal Court, the Mbeki Report concludes: “The International Criminal Court is a court of last resort, which complements the national judicial systems. It is also a court of limited capacity.
This means that even when deploying its full resources, it can only deal with a few individuals out of any situation of which it is seized. It follows that where widespread crimes have been committed, the overwhelming majority of potential criminal cases must be dealt with by the national system.”
On the other hand, the Waki-Annan Report shuts the doors tight to any local options other than a Special Tribunal that should be separate and independent from existing national criminal justice system.
It would appear that this recommendation by Waki for a Special Tribunal established by Parliament, failing which the International Criminal Court referral mechanism would automatically be triggered, was a fatal mistake. Shockingly, no one has come forward to try and cure or at least, attempt a rescue.
Even more disturbing is why the Kenya and Darfur reports should have such a wide divergence on the role of the ICC.
To fully grasp the genesis of the controversy, one has to examine the difficulties faced by the diplomatic conference in trying to overcome serious, politically sensitive and legally complex issues that even threatened to break up the conference in Rome.
At that critical moment, the pre-eminence of national courts over the International Criminal Court jurisdiction won the day and saved the statute, leading to its adoption through a vote.
Seven states voted against the Statute while 120 voted in favour and another 21 chose to abstain. The critical mass of 120, mainly developing countries was only attained after the concept of complementarity principle was finally entrenched in a manner that avoided ambiguity or vagueness on the pre-eminence of national jurisdiction over the ICC.
Among the countries that voted against the Statute in Rome were China and United States of America. China expressed concern over an overzealous prosecutor who could abuse his powers.
The United States’ principal objection was over the concept of jurisdiction and its application over non-state parties.
This illustrates how far states were willing to go to protect the sovereign right over their nationals.
The Mbeki panel on Darfur appears to have been fully aware of these political sensitivities and decided to navigate carefully to avoid offending both the word and spirit of the Statute of the ICC.
But, the casual, and one might add, arbitrary way in which the Waki Commission invokes the jurisdiction of the ICC in paragraph 5 of the recommendations contained in Chapter 13 of the Report cannot escape criticism.
Yes, we must deal with impunity firmly and resolutely.
However, the integrity of the legal reasoning behind forwarding the names to The Hague and the invitation extended to the Prosecutor to investigate and prosecute appears questionable.
The fallacy in this is the false presumption that failure to establish a Special Tribunal by Parliament or subversion of its work, can in itself trigger the International Criminal Court to supercede any other national remedy.
Apart from the fact that the available government options for prosecutions have not been exhausted, the Waki report unfortunately only presents one means of establishing a judicial modality for addressing the crimes associated with post election violence.
It follows therefore, the entry of the ICC Prosecutor is both premature and clearly inconsistent with the letter and spirit of the Statute. There is another angle to this debate that needs to be brought out.
At a time when Africa is striving for homegrown solutions for African problems; at a time when the ICC justice is being unfairly criticised as an imposition if not a plot by the West; at a time when ICC justice is perceived to be far removed from victims of crimes in whose name prosecutions are brought; at a time when her leaders are crying foul when African leaders are dragged to far away Europe for prosecution, Kenya cannot afford to miss the opportunity to demonstrate that Africa can deliver independent fair and impartial justice.
Victims of crimes
A unique opportunity presents itself for Kenya to strengthen its justice system and prove to the world that Africa is ready, willing and able to play its part in ending impunity by holding individuals responsible for crimes they commit.
As Ocampo arrives an opportunity for the Office of the Trial Prosecutor to explore areas that the International Criminal Court and Kenya can cooperate in investigations and prosecution on Kenyan soil under Kenya’s national criminal justice system as envisaged under the Statute has presented itself it should be seized.
READERS' COMMENTS
ubmitted by opeyonam
Posted November 05, 2009 11:29 AM
Mr. Thuita, that was an intelligent piece of writing meant for elitist minds like yours. If you've been staying in this country for long, please ask God for wisdom to help you understand that the Kenyan justice system is a basket case.
Submitted by popq
Posted November 05, 2009 10:58 AM
Just another elite vomiting on the shoes of the hapless Kenyans getting rained on in IDP camps and the innocent blood crying for vengeance. Meanwhile the elites can continue arguing whether to drive around in Mercedes or Passat.
Submitted by beejaychester
Posted November 05, 2009 05:50 AM
Mr. Thuita Kenyans do not live in your world where Justice is served. Most Kenyans don't live in Mr. Mwangi's World. Everybody has agreed Ocampo has to go through the Evidence presented by Waki. What is your problem ? Please mind you own business and let Ocampo do his part..
Submitted by maugo1234
Posted November 04, 2009 05:55 PM
Thuita Mwangi is a weird fellow. Ati as PS? He is in Kenya but does not underrstand its citizenry. With fellows like this you can understand why not a single mastermind of the PEV has been taken to court. What is state sovereignity if the very state condones and promotes impunity? This regime should go as soon as the new constitution is adopted so that we can elect a government that is sensitive and responsive to the needs of its citizenry.ubmitted by ekiragu
Posted November 04, 2009 05:38 PM
Pure Nonsense! and its Tomi! (that is to say Too Obvious to the meanest intelligence!)
Submitted by msholozi
Posted November 04, 2009 01:42 PM
It's very interesting how intelligent minds undergo transformation when they join the system. Ethnic cleansing have been with us since 1992. No one has ever been prosecuted. No one has ever prevented the Government from transforming the judicial system, actually, no one can stop it. All Kenyans are saying is that they can no longer trust the courts and don't expect any changes anytime soon. Remember RAO refusing to go to court at the height of PEV? This is what the masses are saying.
Submitted by ureaplasma
Posted November 04, 2009 01:09 PM
Bwana Thuita, such sentiments are exactly the problem with this country: arrogant and ignorant and escapist. What crap, "prove to eh world..." when did Kenya last prove it can do anything sensible, except in athletics? bure kabisa!
Submitted by Tonyfrommalindi
Posted November 04, 2009 12:29 PM
Good article Sir, but for the sake of the powerless let Ocampo do his thing. Waki recommendation is the best thing that ever happened in a long time you can't bastardise his work Sir!
Submitted by dedacus
Posted November 04, 2009 09:36 AM
such propaganda will get us nowhere.we have had over 45 years to sort ourselves out but we cant do that. this PEV issue is out of our hands!
Submitted by Athaka
Posted November 04, 2009 09:13 AM
At any cost, we must not let ICC try any Kenyan's. We must kill the dependancy, lords/slaves behaviour the west imposes on us. The Waki report was a confusion. All who were seen daily on TV calling for "Mass Action" are now deceiving us that they are willingness to work with ICC. ODM and its leadership should think twice.
Submitted by ken09
Posted November 04, 2009 09:02 AM
Thuita Mwangi, please go tell it to the birds. You are defending killers who have frustrated their own prosecution? Do you have any human conscience? The Hague Train is unstopable and the masters you are trying to please have run out of their excuses. If you are a PS in such a crucials ministry and hold pedestrian reasoning, then it's not a wonder Kenya went to the dogs and only a new crop of leaders and managers will return train on track.
Submitted by meanmaroon
Posted November 04, 2009 04:25 AM
This Thuita guy is either an ostrich hiding its head under the sand, or a poodle that has seen a lion. Likely, he is both. Either way, he is scared silly. Hence such nonsense as “This illustrates how far states were willing to go to protect the sovereign right over their nationals” meaning we are slaves to the state. How about we ask the IDP’s if they prefer Ocampo to Thuita?
Submitted by kiirum
Posted November 04, 2009 04:14 AM
Its unbelievable how educated folks can be so dumb,inhuman and insensitive to the plight of those who were slaughtered to death with crude,died painful deaths on the plains of RV,women raped infront of their kids;but with a few shillings in his pocket only the likes of Thuita Mwangi would,I can only hope in 2012(if Ocampo doesn't succeed) you and your immediate family will partake in sharing our pain idiot!
Submitted by ikiplagat
Posted November 04, 2009 01:48 AM
Shut up Thuita..Kenya has a rotten justice system.Leave Ocampo alone to deliver justice...it has been delayed for too long
Submitted by mza
Posted November 04, 2009 01:21 AM
How many months have passed since PEV? Why has the gvt not seized the 'opportunity to demonstrate to Africa it can deliver blah blah blah"? Who has stopped Kenya from 'strengthening it's justice system' over that period of time? We are now in the final 'resort' bwana PS. I am excited like a little girl when I think of Thursday!
Submitted by Thabari
Posted November 03, 2009 11:56 PM
The argument is rendered meaningless by the fact that Kenya has to date not prosecuted any of the masterminds. Nothing in the Waki Report precluded application of the current law. The ICC was created for precisely Kenya's situation: unwilling or unable to punish masterminds of crimes against humanity.
Submitted by okeyo
Posted November 03, 2009 11:23 PM
Mr. Thuita Mwangi I feel you. All the three options (ICC, Special Tribunal, TJRC) that have been suggested are inappropriate in my opinion. Kenyans need to sober up and chart a sober way of dealing with our problems. To do this the media must stop being sensational and the citizenry must stop being 'ngiri'. Our low attention span as a people is appalling.
Submitted by Jonundu
Posted November 03, 2009 11:21 PM
Mr. Mwangi, who are you anyway who are you trying to fool around? Kenya´s justicesystem is rotten and remember what you are saying, is not different from what Martha Karua was telling the ODM when they complained of rigging! "Go to court". Waki`s team was right and made no mistake. You better not adore impunity. You are writting for its perpetuation. Period. Dr. Onundu, Germany
Renaissance reborn
14 minutes ago