Friday, May 4, 2012



By Jerry Okungu
Nairobi, Kenya
May 3, 2012

I watched the EALA parliamentary debate in Nairobi on the ICC cases. I thought the debate was pathetic, ill-informed and downright pedestrian. I could as well have watched that kind of debate in a beer hall or in an assembly called Bunge la Wananchi somewhere in Jeevanjee Gardens of Nairobi.

First of all there are a few basic facts of the ICC Kenya cases and the state of Arusha Court that the MPs completely ignored in their attempt to appease their appointing authorities. They forgot to realize that trying to get the cases back to Kenya or Arusha was an exercise in futility. The horse had bolted a long time ago.

If they really cared for Kenya and wanted cases tried in Arusha, they should have suggested that in 2008 when Kenya was fumbling with a tribunal in Kenya. If they had moved with speed and informed Kofi Annan and the UN that the structures of the Rwanda Court- which was winding up could be converted to a Kenyan court, the whole world would have listened. They never did.

These EALA MPs live in Arusha. They should be aware that just changing the mandate of the EACJ does not make it a criminal court of international standards. To convert the court from its current status- that of merely interpreting EAC Treaty and its protocols to an international criminal court cannot be accomplished in a year or even two years. It will need new buildings, maximum prison cells for holding the accused and tons of money to hire and recruit lawyers and judges of international repute. More critically, well trained and credible criminal investigators and prosecutors will have to be in place to conduct thorough investigations. Or will the EACJ simply borrow the now maligned Ocampo investigation files from the ICC?

All these preparations take time and are very costly. Does the EAC have ready cash to do this or will it still go to the usual foreign masters that they now accuse of running a colonial court for Africans at The Hague? If the EAC’s own institutions are currently partly funded by donor funds, will the same donors fund a court in Arusha when there is a ready court in The Hague just for four Kenyans?

Even if we were to assume that the trials would be heard by the current judges who are all political appointees of the summit members, will there be any credibility in these hearings? Will there be justice in these courts? What will stop them from pandering to the whims of the regional heads of state? What will stop our regional judges from being partisan and biased in favour of the accused in Kenya just as the EALA members appeared to be during their debate?

During the EALA debate in Nairobi, it was evident that the real motivation for EALA legislators to get cases to Arusha was a mere political PR to please a section of the Kenya government and had nothing to do with genuine search for justice for post-election victims and their villains.

During their debate, the legislators demonstrated beyond reasonable doubt that they had no clue about the political dynamics of Kenya, hence their emotional contributions about baseless conspiracy theories. It was the kind of argument we would have expected from primary school kids in their school debates.

The one MP that seemed to make sense was Hon Lododo from Kenya but his voice of reason was drowned in a din of hecklers that seemed to have been coached and choreographed to win the debate at any cost.

For the benefit of our honourable members at EALA, Kenyans are tired of this ICC debate. We want it concluded so that we can move on with our lives. Four Kenyans cannot hold our country at random for years. They have a chance to prove their innocence at The Hague just as two of their colleagues did during the pretrial. If need be, they need to change lawyers if they are serious about winning their cases in the next round.

However, EALA and the EAC Heads of State are at liberty to set up a regional tribunal to try 5000 other suspects of post-election violence which the Kenya government has refused to prosecute.

Trying the four suspects in Kenya is fraught with a myriad logistical problem. Kenyans have no capacity to contain riots that may affect the trials. Examples abound when during the pretrial at The Hague, close to 100 MPs travelled to The Hague to show solidarity with the accused. And how did they show that? They went singing and making fools of themselves on the streets of Amsterdam after they had been locked out of the courtrooms. Imagine what they would do at Arusha next door! There would be lorry loads of rented crowds waiving banana leaves every morning travelling to Arusha. There would be no peace in Arusha during the trials.

Just last week, Kenya got the taste of rowdy supporters when leaders of the Mombasa Republican Council were arrested and taken to court. The police spent the whole day battling supporters that were bent on invading the courts! The same rowdiness greeted the police when they arrested and charged the Mungiki leader with robbery with violence in Nairobi the same week.

Kenya is too volatile for the trial of the four suspects locally. It is better to even consider a country like Ghana, Senegal or Morocco as possible trial venues if all we are against are trials on a European soil.