Thursday, December 03, 2009

Stage is set for ICC Intervention in Situation in Kenya

After meeting the President and the Prime Minister in Kenya on 5 November 2009, the Office of the Prosecutor (OTP) of the International Criminal Court decided to request the Pre-trial Chamber’s of the ICC for authorization to investigate the Kenyan Situation. The decision was prompted when the Kenya government declined to refer the matter to the ICC according to Article 14 of the Rome Statute.

Pursuant to his decision, on 5 November 2009 the ICC Prosecutor Mr. Luis Moreno Ocampo notified the Court of his intention to submit a request for authorization of an investigation into that situation under article 15, paragraph 3 of the Rome Statute of the International Criminal Court by 1 December 2009. The Court on its part expeditiously decided on 6 November 2009 to assign the situation in the Republic of Kenya to Pre-Trial Chamber II with immediate effect. According to the Court, the request is based on the Prosecutor's determination that "there is a reasonable basis to proceed with an investigation into the Situation in the Republic of Kenya in relation to the post-election violence of 2007-2008".

Kenya ratified the Rome Statute on 15 March 2005, which entered into force for Kenya on 1 June 2005. In December 2008 Kenya domesticated the Statute by enacting the International Crimes Act of 2008. The Act, however, entered into force on 1 January 2009 and therefore it does not apply to the post election violence crimes according to the retrospective principle in the Constitution. The international jurisdiction of the ICC, however, applies to Kenya under the complementarity principle. According to this principle the ICC may intervene only if there are no national proceedings against those responsible for the crimes. This is the assurance Mr. Ocampo sought from the Kenyan authorities during his visit. But the response from the government was equivocal. While they promised to cooperate with the ICC they at the same time refused to refer the matter to the ICC but expressed their commitment to pursue national mechanism to deal with impunity.

The events in Kenya are of interest to international criminal justice and jurisprudence. Firstly, this is the first time the ICC Prosecutor is invoking the powers conferred to him under Article 15 to open proprio motu investigations on a situation occurring in a State Party to the ICC. The other situations under ICC investigation and prosecution, respective State Parties namely Uganda, the Democratic Republic of Congo (DRC), the Central African Republic (CAR) referred the matter to the ICC and the United Nations Security Council referred the situation in Darfur, Sudan (a non-State Party). Moreover, the situation in Kenya presents the ICC with its first case in which a request for authorization has been made by Prosecutor. The determination of the case will be precedent setting irrespective of the outcome.

Secondly, the application of the complementarity principle in the Situation in Kenya will be interesting to explore. According to the principle, States remain the primary enforcers of international criminal law, and the ICC is only a court of last resort established to complement national systems where they fail to conduct adequate investigations and prosecutions. The ICC cannot intervene if the State is willing and able to fulfill its primary responsibility. The question is whether Kenya has failed to conduct adequate investigations and prosecutions against those criminally responsible? The answer may seem quite obvious but the reasons may not be apparent. In my opinion, a thorough examination and analysis of reasons and thinking of the Kenya government and the Prosecutor could elucidate the issue further.

The Government of Kenya may be playing hide and seek game with the ICC but its options have run out. Despite Prosecutor’s indulgence on complimentarity basis the government has failed to establish a special court to deal with post-election impunity as required by the Waki Commission Report (Report of the Commission of Inquiry into Post Election Violence (CIPEV)). The government declines to admit it has failed. Its double edged statement after the meeting with the ICC Prosecutor in Nairobi confirms government’s motives. The government could be thinking that by allowing the Prosecutor to take the initiative, they still have room for maneuver if within the 30 days of notification of authorization by the Prosecutor of commencement of investigations it claims to have put in place local mechanisms by setting up a local tribunal. Such a move could slow down the ICC process but will not stall it as the Prosecutor could notwithstanding seek Court’s authorization to proceed. As argued below he has adequate reasons to do so.

From a political perspective the government’s refusal to refer the matter to the ICC may have been triggered by the fear of being declared a failed State. The motive of the government is not to be seen to have failed in its primary responsibility of punishing impunity. Otherwise, it will rank with other failed States such as DRC, CAR and Sudan. But covertly the government seems to want the intervention by the ICC.

The ICC Prosecutor seems to operate from a number of convictions. The first is that the government has failed in its primary responsibility of investigating and prosecuting those bearing greatest criminal responsibility and the ICC’s intervention is inevitable. The Prosecutor’s mission to Nairobi was to inform about the way forward to the government not to negotiate with it on national mechanisms. It was the Prosecutor’s expectation that the government would refer the matter to the ICC, and failure to do so that he would move to ICC. His prompt action to request authorization from the ICC was an anticipated reaction.

The second conviction was repeated in his statement in Nairobi. The Prosecutor said that he is of the opinion that crimes against humanity have been committed in Kenya. “In accordance with his preliminary examination of the situation, there is reasonable basis to believe that the attacks against Kenyan civilians during the post election violence, constitutes crimes against humanity under the jurisdiction of the ICC. In accordance to Article 7 of the Rome Statute, a crime against humanity means a widespread of systematic attack directed against the civilian population.”

The third conviction is based on the mandate of the ICC “to put an end to impunity and thereby contribute to prevention of future crimes” as provided in the Preamble of the Rome Statute. The Prosecutor is convinced of the urgency of investigations and prosecutions in the situation in Kenya because, according to him, it will contribute to justice and prevention of impunity in the coming general election 2012. He does not believe that a national process would act expeditiously and decisively before the next general election in 2012. As he has always insisted “the ICC is ready to make Kenya a model example in prevention of impunity”. This is an opportunity he would not like to slip away.

The fourth conviction is that ICC proceedings should go hand in hand with complementary investigations and prosecutions at the national level as well as healing and reconciliation processes. The Prosecutor does not exclude national proceedings aimed at dealing with numerous cases of impunity which the ICC cannot address. This is the basis for the Prosecutor’s three-prong approach: The ICC to try those bearing the greatest responsibility, a local tribunal to prosecute other offenders and the non-prosecutorial Truth, Justice and Reconciliation Commission for healing and reconciliation. Impunity is deeply ingrained in the Kenyan society and a single process such as the ICC cannot undo it. A combination of mechanisms seems appropriate.

The fifth conviction is that the Kenya government is committed to cooperate with the ICC. The litmus test for the government’s seriousness, however, will come when the warrants of arrest are issued. If the government does not comply with the arrest orders then its assurances will amount to mere political gimmicks and theatricals. The process is, however, inexorable.

Configuration of the factors above has set the stage for ICC intervention in the Situation in Kenya. Political intrigues and interests will undoubtedly attempt to derail the process but this tactics might not succeed this time. Even if politicians dither, the ICC Prosecutor is committed to ensure impunity is punished and future crimes are prevented. Besides, the ICC process has the support of the public and the international community. The engagement of the ICC in the Situation in Kenya is also an assurance to the victims that those bearing the greatest responsibility will not win again.

This article was first publishe in Pambazuka News on 26.11.2009

Sunday, October 11, 2009

I Like the New Raila I See!

With this contribution I want to go against the mainstream belief that Raila Odinga has become comfortable in his current position of the Prime Minister of Kenya and abandoned his revolutionary charisma.

Believe me I like the new Raila I see. I would like to think that Raila has matured as a politician. He has become a statesman, a Prime Minister of all Kenyan people and abandoned political activism. He has changed tactic from the confrontational revolutionary fire spitting politician to politically engaging and even disarming statesman. His silent engaging politics are more effective in the current political landscape than his cries of lack of toilets, carpets and consultation. Consultation is a mutual exercise. One has to be ready to go into it with good faith for it to produce good results.

Instead of imputing bad faith in Raila, I think the civil society and media should see the light and change tactic too. There is time for everything. There is time for revolution and confrontation and there is time for evolution and engagement. This is time for evolutionary and engagement politics and Raila has read the writings on the wall correctly. The civil society, media and a large section of the society in Kenya is still living in the past.

In 1992 Kenya changed from one-party state to a multiparty state. But the opposition leaders, civil society and media did not change. They approached politics in the same old way of confrontation. In 1997, the opposition embraced engagement and the interparty agreement was reached. The outcome was a seemingly independent election commission that organized the 2002 general elections. Perhaps without this agreement the successful 2002 general elections that overturned tables for Kanu would not have been possible. But immediately in 2003 the confrontational politics resurfaced with wars on the Narc Memorandum of Understanding (MOU) and the constitutional process. The standoff culminated to the 2007 post-election violence as the main political parties and their leaders refused to yield way to each other. The ensuing Grand Coalition Government in 2008 was characterized by confrontation in the first year in office. But now the so called Principals seem to have realized the futility of their obstinacy and inflexibility. Because of the lack of flexibility in civil society, some politicians, the media and a large section of the society, Raila is readily labeled a traitor and having betrayed the revolutionary path.

Learning from history, we see that the Kenyatta and Old Odinga confrontation in the 60s plunged the country into a paradigm of confrontation politics that has consumed the country for the last 45 years. Isn’t it time to shift paradigm and build on the things people agree on and not devour each other on real or perceived differences? Is it not easier to build on the already achieved reforms rather than whining over an empty glass? Kibaki and Raila in their new found cooperation can propel Kenya to greater heights in terms of political reforms and economic growth if they were given full support rather than being criticizes from all corners. This is time for talking with each other rather than to each other. It is not time to draw lines between reformers and anti-reformers. Divide and rule tactics will only destroy the good faith that is required to see the reforms through. The saying that, it is easier to swim downstream rather than upstream, is apt here. Raila and Kibaki have opted to swim downstream by choosing to be bigger than their revolutionary and conservative selves respectively and by engaging each other in the reform paradigm.

It is easy to be tempted into rubbishing the already accomplished work on reforms by invoking the seemingly impossible work ahead, but little progress will be made without painstakingly laying down the legislative and institutional building blocks for the reforms to take off. The various legislation that have established institutions such as the election commission, the constitution committee, the election boundary reform commission, the truth, justice and reconciliation commission, and the national cohesion and integration commission are not baby steps given where Kenya was January last year. Now is upon Kenyans to give these institutions the moral support they need in order to carry out their work effectively. On land reform, the adoption of the National Land Reform Policy by the Cabinet is also another milestone. The parliament should move very fast and adopt it too. On the infrastructure such as roads anybody living in Kenya today will attest to the work done and still going on. Other areas are those involving socio-economic development and on these one too the CDF, Kazi kwa Vijana, women and youth development funds are also not small things.

There are still areas where the government needs to do more especially as regards impunity and corruption. Reforms in the judiciary and police need more momentum. But confrontation will not achieve much. The reality is that impunity, corruption and insecurity are endemic and must be dealt with decisively for stability and security to return in Kenya. But what one hears from the civil society, media, a section of politicians and foreign diplomatic missions is prophesies of doom and hopelessness. What is required is courage in engagement and not in confrontation. Raila and Kibaki are showing leadership here while the rest of the society is droning. The Parliament need to be tough but at the same time it should see beyond its current war on supremacy with the Executive. It should not be pursued at the expense of necessary reforms.

Comprehensive and sustainable reforms are possible before 2012 but the entire country should move in the same direction. It should be on the same wave length. I think Raila believes in this, Kibaki believes in it too. Kenyans should also believe.

Tuesday, January 20, 2009

Congratulation President Barack Obama for the Audicity to Hope

This blog would like to congratulate President Barack Obama for his inauguration as the 44th President of the United States of America. At the same time it reflects on the lessons his achievement teaches us.

Today history is in the making for the millions of black people all over the world. Your presidency in the most powerful country in the world uplifts many people of the trodden race. You have made what many thought was impossible achievable. This has a number of lessons for the black people.

The first lesson goes to the African leaders. True leadership is about uniting the people not dividing them. The evils bedevilling Africa from poverty, disease, ignorance, illiteracy, war, hatred, bigotry, corruption, you name it is a result of false leadership. Obama has demonstrated that true leadership does not thrive on the misery of its people but on the hope and inspiration it brings to the people. On the other hand, African leaders have used all tactics in their possession to divide the people on ethnic, religion, and regional lines in order to get and remain in power. If Obama had listened to bigotry he would not have won the presidency. Through his actions and words he proved that the presidency was not about African-American turn but about the best candidate. How many times have we heard African leaders shout themselves hoarse “it our turn now”. By projecting himself as the best candidate, Obama won the hearts and minds of the people. True leadership is about winning the hearts and minds of the people and not preaching divisive hatred and fear.

President Obama has demonstrated that it is only through the cooperation of a people that their greatness can be attained. For him a great America is not black, white, Asian or latino. A great America is black, white, Asian and latino. It is a poor and rich, young and old America. You cannot exclude any one race or class and then claim greatness. On the other hand, African leaders are masters of exclusiveness. Their greatness comes from their race or ethnic group in exclusion of all the others.

President Obama has also proved that a great leader does not ally himself with bad and tainted leaders or persons. When Reverend Jeremiah Wright preached bigotry he denounced and rejected his prejudices. Obama said, "I categorically denounce any statement that disparages our great country or serves to divide us from our allies . . . I reject outright the statements by Reverend Wright." A leader could have a big constituency of votes but that is not what matters to Obama. Integrity comes first. Our African leaders embrace even murderers.

The second challenge is to the African, black and all trodden people – complain about the wrongs done to you but do not embrace a victim attitude. Do not let anger and bitterness overtake you. Abhor the injustice suffered but do what you must do to uplift yourself. In Obama’s words, “never succumb to despair or cynicism; you must always believe that you can write your own destiny.” If Obama had emphasised his disadvantages, he would not have had the capacity to dream big and go for presidency. He would have consoled himself by saying “no African-American can ever win the presidency”. But he dreamt and his dream came true.