By MIGUNA MIGUNA
August 27th, 2010 was supposed to be the third most important historic occasion for Kenyans; the first being December 12th, 1963 when Kenya attained independence; and the second being August 4th, 2010 when they overwhelmingly ratified the new Constitution.
However, because of the arrogant and reckless decision by a few power barons affiliated to PNU, the presence of Omar Hassan Ahmad Al Bashir during the public proclamation and celebrations of the new Constitution at Uhuru Park, Nairobi, has transformed that important day into a day of shame and utter disgrace.
August 27th will forever be viewed as a day when the retrogressive old power mandarins declared to Kenyans and to the world that for them the new Constitution means nothing; that impunity still remains a way of life; and that they have no intentions of complying with the letter and spirit of the new charter; leave alone respect international law, treaties and obligations.
Omar Al Bashir’s presence in Nairobi was a loud declaration that though a signatory to the Rome Statute, Kenya, under the stranglehold of illegitimate power barons, do not respect and have no intentions of obeying the rule of law and Kenya’s international obligations.
Instead of being proud of the day when they were supposed to publicly reclaim and assert their nationhood, sovereignty and independence; Kenyans watched in both dismay and helplessness as an internationally indicted international fugitive desecrated their national day and occasion.
This was supposed to be their day but it turned into their worst nightmare. Unlike previously when their self-imposed leaders celebrated meaningless days; August 27th was intended to be a day when the ordinary Kenyan took the centre-stage, honour and pride for having fought gallantly and won against the forces of repression and dictatorship.
It was meant to be a day when Kenyans were to give birth to a new republic and nation; one constructed on and defined by patriotism, constitutionalism, respect for human rights and rule of law. Kenyans were to bury – forever - the decaying skunks of impunity, corruption, ethnic exclusion and discrimination.
Uhuru Park is supposed to be a liberated public space. It belongs to all Kenyans; not to a few shadowy power oligarchs whose fear for justice, retribution and accountability for their past and ongoing transgressions is as acute as their proclivity to corruption, tribalism, impunity and dishonour.
So, when Omar Al Bashir is spotted strutting like a peacock at a national liberated public space without our permission or consent; we are justified to get angry, very angry. And we are, in our tens of millions; from the smallest villages to the largest cities.
Al Bashir’s invitation is a declaration of war on Kenyans. By that act, the retrogressive forces have arrogantly sullied the national mood and thankfully warned us that the battle to reclaim our sovereignty, stolen independence and tattered nationhood has just begun in earnest.
As I stated in this column on August 6th, the hard part has just begun. Full implementation and faithful application of the Constitution will even prove more treacherous than the process of writing it. Faint-hearted single-issue activists will find this terrain too rough.
Progressive forces be warned: the red and watermelon reactionaries have regrouped to undermine, sabotage and render useless the new Constitution. Now is not the time for recrimination, ponderous debates and in-fighting; we must immediately unite, organize and mobilize our forces for the final battle. It will be bigger than Waterloo and Adowa.
Those who invited Al Bashir without our consent know that the alleged Butcher of Darfur is a man at large; a fugitive from justice.
Al Bashir’s warrant of arrest was issued by the ICC on 4 March 2009. It lists seven counts for his individual criminal responsibility under Article 25(3)(a) of the Rome Statute as an indirect (co) perpetrator including five counts of crimes against humanity, two counts of war crimes and three counts of genocide. These are heavy duty criminal charges. There aren’t any worse charges anybody could face.
It’s immaterial to argue that Al Bashir is presumed innocent until proven guilty; of course he is. Nobody has alleged that he is guilty. For those who believe in the rule of law, all we are saying is that Al Bashir should and must be subjected to the international criminal process so that he can assert his innocence. If or when the charges are disposed of, one way or the other, following a legitimate and credible trial by the ICC, he will be free to argue about his innocence or guilt. But until he surrenders or is delivered to the ICC for trial, Al Bashir remains a man at large. His refusal to obey valid court orders and present himself before the ICC aggravates rather than mitigates his situation. The Kenyan power oligarchs who brought him to Nairobi might be celebrating the temporary adrenalin rush, but the long-term impact will hit then like a million tone lead.
Clearly, the ordinary Kenyan, progressive forces, the ICC and the international community got the message: many powerful and entrenched elements and forces within the state apparatus are unwilling to cooperate with the ICC. They will continue to subvert the ongoing investigations by killing potential witnesses, destroying and tainting evidence with the hope that such acts will undermine the ICC’s ability to bring them to account for the crimes they committed before, during and after the 2007 elections. That is why they even illegally arrested and detained two patriotic Kenyans who were demonstrating against Al Bashir’s presence. These arrests and detentions prove that the PNU wing of the coalition have started to flagrantly violate the new Constitution as they did the old one.
Even by the low standards of our counterparts, was Al Bashir worth antagonizing and alienating Kenyans and the international community?
Al Bashir’s invitation had nothing to do with regional peace or stability. Darfur that he allegedly plundered, pillaged and destroyed is part of the Sudan, this region and Africa. Darfuris are human beings that deserve peace, stability and security; like everyone else. Al Bashir is not a custodian of humanity, peace or stability. Being president does not and cannot immunize Al Bashir from accountability for serious crimes he is alleged to have committed against his own people.
I am sick and tired of people making fallacious arguments against the ICC on account of the fact that it has investigated and acted on more African cases than from anywhere else. Is the ICC supposed to create cases where they don’t exist? Even if it were true, why should Africans complain when the ICC is ridding us of demagogues and brutal dictators? Is it legitimate to complain that the ICC is only getting rid of African criminals?
Why did the PNU mandarins bring the mass murderer to our country without consulting and obtaining the concurrence of the ODM? Surely, if we are serious about national reconciliation, unity and bipartisanship in implementing the Constitution, we must stamp out such acts of impunity, for if we don’t, then we cannot guarantee the stability of this country leading up to the 2012 elections and beyond. Or, are we being told that to some powerful forces, nothing has changed?
I have read that the ICC has referred Kenya to the UN Security Council. I hope and pray that our arrogant power barons are slapped hard with whatever the Security Council resolves.
The writer is the PM’s advisor for Coalition Affairs and Secretary to the Permanent Committee on the Management of Grand Coalition Affairs. The views expressed here are his own.