Saturday, March 17, 2012



By Jerry Okungu Nairobi,
Kenya March 14, 2012

The ICC dossier in Kenya is still fresh and volatile. Fake or not; fabricated or not; it is still a hot potato in Kenyan social venues, public offices and even in parliament. If you listen to the debates on local media and even in the august house, you easily realize that the battle lines are already drawn.

The PNU side is convinced it is genuine. ODM on the other hand has dismissed it as fake, the creation of a smart propagandist out to prepare the country for a confrontation with the ICC. However, first things first; as I wrote this article, the ICC delivered its first guilty verdict in a decade. The court found Congolese former rebel leader, Thomas Lubanga guilty of war crimes for using children in his rebel army. Lubanga, 51, was first transferred to The Hague in 2006 and first went to trial three years later in 2009.

Now that Thomas Lubanga has been tried and found guilty, chances are we are going to hear the all too familiar reaction from the African continent. ICC bashers will be quick to condemn the alien court for targeting Africans or better still a neo colonial court has been set up to finish gallant African leaders; never mind that the likes of Thomas Lubanga and Charles Taylor actually committed atrocities in their countries. Here in Kenya, we are no longer at ease with the ICC; never mind that we signed the ICC protocols a long time ago and went ahead to entrench the Rome Statutes in our new constitution.

We are not at ease because four of our brothers are likely to face the same court that Thomas Lubanga went through for six years. Whether they are guilty or not is not for us to decide. It is a decision which the ICC alone will make at the appropriate time.

It is true the majority of the cases presently handled by the ICC are from Africa. This scenario has created some kind of phobia about the court as an imperialist justice system. However, why don’t we as Africans take a step back and ask the one important question? The question we should be asking our selves is why we form the majority of suspects in the ICC courtrooms.

If you compare Africa with Europe; which of the two continents has the majority of leaders still averse to free and fair elections? Which of the two continents still harbours the likes of Omar El Bashir of Sudan; a dictator who butchered women and children in Southern Sudan for over two decades?

While still on Sudan, can anybody tell me that the senseless massacres in Darfur by militias and Sudanese soldiers were an act of God? Can anybody tell me that Joseph Kony and his ragtag army that specialize in butchering and kidnapping children for sex and military recruitment is the kind of person this continent should tolerate just because the ICC is situated in The Hague?

When the Rwanda genocide occurred in 1994 where close to a million people lost their lives in just 100 days, the trials of the most culpable genocide perpetrators took place in Arusha Tanzania. In that Tribunal, some suspects were acquitted while others were jailed. We never cried foul over the setting up of the court in Arusha. We accepted that it was the most honorable thing to do. When the Kenyan case came up as early as 2008, we tried all we could to set up a local tribunal inside Kenya to try all suspects of the 2008 post election violence, however, our own parliament would never hear of it.

Repeated pleas and lobbying from President Kibaki and Prime Minister Raila to pass a bill setting up a local tribunal fell on deaf ears. Kofi Annan, the peace mediator later on pleaded and pleaded with Kenyans to set up a local tribunal and even extended the deadline twice. We still failed to heed his bending backwards. Instead the only credible noise we could hear from the august house was “Don’t be vague. Let’s go to The Hague!”

Interestingly the people now crying loudest about being victimized are the same people who sponsored their MP supporters in Parliament to reject a local tribunal on the grounds that there could be no fair trial in Kenya and in any case, The Hague process would take 100 years to materialize. Now that The Hague has come sooner that they anticipated, they have quickly turned around to look for scapegoats. They have zeroed in on their individual political opponents whom they believe to have conspired with the Americans, the British, ICC judges and of course the ICC prosecutor to lock them up and derail their presidential ambitions.

The truth of the matter is, if indeed The Hague trial for four Kenyans is about the 2012 presidential elections, where does this leave Francis Muthaura and David Sang who are not vying for the presidency? Was Henry Kosgey a presidential candidate? Was General Hussein Ali a presidential candidate? When the KNHRC and Justice Waki were gathering evidence on post election violence, had the current presidential candidates declared their candidacy for the race that was five years away?

It is easy to manufacture plausible propaganda but more difficult to contain its damage. The ICC dossier causing ripples in Kenya is a case in point.


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