Sunday, March 20, 2011



By Jerry Okungu

Nairobi, Kenya

March 9, 2011

It is always a popular saying that the wheels of justice are slow but they eventually turn all the same.

This situation can easily describe the circus with which we Kenyans have been handling crimes that were committed against our citizens following the chaotic elections of 2007.

When Kofi Annan’s Serena Group laid the foundation for the Krieglar and Waki commissions to investigate election malpractices and the chaos that followed, very few of us expected these commissions to come out with anything tangible based on our past experiences with commissions formed after similar events in the past. Kenyans could accurately remember the Akiwumi report on past election chaos in the Rift Valley, the Mwangale Commission following the murder of JM Kariuki in 1975 and of course the Ndungu Commission on Land grabbing and the Bosire Commission on the Golden Berg scandal immediately President Kibaki came to power after the 2002 elections.

When Justice Waki presented his report to the Grand Coalition partners in late 2008 as per the Kofi Annan prescription, nobody believed that anything would come out of it except for a little detail. The good judge advised that the Grand Coalition must set up a local tribunal of international standards to try all suspects of post election violence within a time frame or else names of suspects that he withheld from the principals would be handed over to the ICC Chief Prosecutor by Kofi Annan the chief mediator.

Attempts by Parliament to set up a local tribunal hit a brick wall after several attempts. At that time, there were others- especially suspects- who believed that going for trial in The Hague would not only be fairer but would take much longer-some even hinted a period of 90 years!

However, when Moreno Ocampo finally got the envelope and a nod from Kofi Annan to proceed with investigations; it finally dawned on suspects that the Argentinean prosecutor was no pushover and was not as inefficient as others thought. He took the Kenyan case with gusto promising to make Kenya an example to the world that crimes against humanity finally don’t pay in the long run.

For many months, Kenyans debated with each other who they thought might be in the list. Ironically most Kenyans knew that Uhuru Kenyatta and William Ruto were on that list since they had been fingered by other human rights groups that had gathered evidence before, during and after the chaos. The two gentlemen even went to local courts to get their names expunged from such human rights reports. They were not lucky. The courts threw out their pleas.

When in December 2010, Moreno Ocampo finally made public the names of the six suspects he planned to prosecute; Kenyans were shocked at the list. Whereas they expected William Ruto, former Police Commissioner General Hussein Ali and Uhuru Kenyatta to be on the list, they never expected the Head of the Civil Service and Secretary to the Cabinet, Francis Muthaura, Henry Kosgei, and Minister for Industrialization and KASS radio presenter, Joshua arap Sang to be on the list.

Since then a lot of water has passed under the bridge; some of it not too nice but most of it just downright silly. Many people in high government positions have behaved in a most awkward and embarrassing manner.

A section of the government sympathetic to the Ocampo Six has vilified the ICC and gone to all lengths to discredit it at every available international forum. Suddenly, the same people who opposed setting up a local tribunal had discovered that Kenya was after all a sovereign state that needed to protect its nationals against prosecutions in foreign lands; never mind that in the recent past many Kenyans have been bundled out into Cuba and Uganda to face terrorist charges without anybody raising a finger.

The way a section of the Kenya Government has handled this Ocampo Six reminds me of what my father used to tell me about a rhino. He told me that a rhino is a very dangerous animal only that it has no sense of sight. It will charge at a perceived enemy based on the scent emanating from the victim. And when it wants to attack, it will run at full speed in a straight line. And the best way of defense was to know that a rhino never sees you even though it plans to attack you. The best defense would be to shift positions or better still hide behind a tree and it will hit at the tree with all its might.

President Kibaki, Kalonzo and their team knew that trying to derail the ICC process was an uphill task. They went against all conventional advice and wisdom to have it their way. Even the advice from the Minister for Justice to negotiate a deferral directly with the ICC hit a brick wall.

Now the chickens have come home to roost at a most awkward moment. The ICC has timed its summons of the Ocampo Six to coincide with Kenya’s delegation in New York where it had gone to lobby the membership of the Security Council to give Kenya a deferral even as the French, British and American envoys had sworn that their nations with veto powers would oppose the Kenyan case.

Surely, did we have to go to this length to embarrass ourselves internationally because of our domestic politics?