Over the past few weeks, there have been efforts by the PNU wing of the coalition government, to delegitimize the International Criminal Court and its proceedings against “the Ocampo Six” as we now call them.
To anyone with some knowledge of jurisprudence, this kind of thing seems both absurd and futile, since nobody at The Hague will be moved in the slightest by what is reported in Kenyan newspapers as having been said at a political rally or a press conference.
But whereas from a purely legal standpoint the attempt to delegitimize the ICC is a waste of time, from a political point of view it is not. Indeed those friends of the ‘Ocampo Six’ who are working on this, are doing much the same thing as the Libyan dictator, Colonel Gadhafi, when he describes the ongoing military action against his forces by various Western nations, as an attempt to recolonize Libya.
The fact is that if you can get enough people to view a legally sanctioned intervention as being in some way illegitimate, then there will be consequences. Legitimacy is not just a question of the law; it also has something to do with perception and belief. This is why lawyers like to say that “Justice must only be done, but it must be seen to be done.”
Perhaps the best example of this kind of thing comes to us from the recent Wikileaks revelations published in the local press. Going by the revelations made thus far, it seems that President Mwai Kibaki honestly believed he had won that fateful 2007 General Election. Of course the PM, Raila Odinga also believed that he had won. But the point is that the US State Department cables suggest that Kibaki was not some ruthless political schemer who knew very well he had lost, but was determined to cling to power (which is what seems to be the case with Laurent Gbagbo in Cote d’Ivoire). Our president honestly believed he had won.
Why then did he agree to share power? It is one thing to agree to share power if you know very well that you should not have been in a position of power in the first place. But it is quite another to agree to form a power sharing coalition, when you are absolutely convinced that you are the validly elected president of the country.
I would speculate that although he may have believed that he was the legitimately elected president of Kenya, there was a certain critical mass of Kenyans – maybe a majority; maybe not – who did not regard him as such, and this made Kibaki’s occupancy of state house a shaky prospect.
In short, the widespread resistance to the Kibaki presidency in 2008 effectively delegitimized his government, both locally and internationally. And the only way back to legitimacy for him, was through a coalition government.
So, if the supporters of “the Ocampo Six” were to successfully convince a clear majority of Kenyans that the proceedings at The Hague were a travesty of natural justice; or an act of neo-colonialism; or something totally unnecessary because we can handle this problem within our own borders, and using our own courts; while this may or may not not stop the work of the ICC or influence it in any way, it would certainly have consequences here in Kenya.
But in the circumstances, this war of propaganda against the ICC began much too late to have any real impact. For many months now, every opinion poll conducted has shown that the majority of Kenyans would rather see those accused of the greatest responsibility for the post-election, tried at The Hague.
The legitimacy of the ICC has by now taken too firm a hold on Kenyan minds, to be demolished by a last minute campaign of propaganda, however shrewdly carried out this may be.
I think this is why some kind of deal seems to have been reached to try and create a local mechanism to try the suspects within our own judicial system. All the jet setting that the VP Kalonzo Musyoka has been engaging in for the past few weeks; all the attempts to delegitimize the ICC; all this has failed, and it is now clear that the PNU political establishment has to find some way to work within the ICC system.
The question this now poses is, Will the judicial process that parliament is now said to be working on, be seen as a legitimate mechanism for seeing justice done over the post-election violence? Or will it be dismissed as one set up specifically to secure the acquittal of the ‘Ocampo six”?
The writer comments on topical issues
To anyone with some knowledge of jurisprudence, this kind of thing seems both absurd and futile, since nobody at The Hague will be moved in the slightest by what is reported in Kenyan newspapers as having been said at a political rally or a press conference.
But whereas from a purely legal standpoint the attempt to delegitimize the ICC is a waste of time, from a political point of view it is not. Indeed those friends of the ‘Ocampo Six’ who are working on this, are doing much the same thing as the Libyan dictator, Colonel Gadhafi, when he describes the ongoing military action against his forces by various Western nations, as an attempt to recolonize Libya.
The fact is that if you can get enough people to view a legally sanctioned intervention as being in some way illegitimate, then there will be consequences. Legitimacy is not just a question of the law; it also has something to do with perception and belief. This is why lawyers like to say that “Justice must only be done, but it must be seen to be done.”
Perhaps the best example of this kind of thing comes to us from the recent Wikileaks revelations published in the local press. Going by the revelations made thus far, it seems that President Mwai Kibaki honestly believed he had won that fateful 2007 General Election. Of course the PM, Raila Odinga also believed that he had won. But the point is that the US State Department cables suggest that Kibaki was not some ruthless political schemer who knew very well he had lost, but was determined to cling to power (which is what seems to be the case with Laurent Gbagbo in Cote d’Ivoire). Our president honestly believed he had won.
Why then did he agree to share power? It is one thing to agree to share power if you know very well that you should not have been in a position of power in the first place. But it is quite another to agree to form a power sharing coalition, when you are absolutely convinced that you are the validly elected president of the country.
I would speculate that although he may have believed that he was the legitimately elected president of Kenya, there was a certain critical mass of Kenyans – maybe a majority; maybe not – who did not regard him as such, and this made Kibaki’s occupancy of state house a shaky prospect.
In short, the widespread resistance to the Kibaki presidency in 2008 effectively delegitimized his government, both locally and internationally. And the only way back to legitimacy for him, was through a coalition government.
So, if the supporters of “the Ocampo Six” were to successfully convince a clear majority of Kenyans that the proceedings at The Hague were a travesty of natural justice; or an act of neo-colonialism; or something totally unnecessary because we can handle this problem within our own borders, and using our own courts; while this may or may not not stop the work of the ICC or influence it in any way, it would certainly have consequences here in Kenya.
But in the circumstances, this war of propaganda against the ICC began much too late to have any real impact. For many months now, every opinion poll conducted has shown that the majority of Kenyans would rather see those accused of the greatest responsibility for the post-election, tried at The Hague.
The legitimacy of the ICC has by now taken too firm a hold on Kenyan minds, to be demolished by a last minute campaign of propaganda, however shrewdly carried out this may be.
I think this is why some kind of deal seems to have been reached to try and create a local mechanism to try the suspects within our own judicial system. All the jet setting that the VP Kalonzo Musyoka has been engaging in for the past few weeks; all the attempts to delegitimize the ICC; all this has failed, and it is now clear that the PNU political establishment has to find some way to work within the ICC system.
The question this now poses is, Will the judicial process that parliament is now said to be working on, be seen as a legitimate mechanism for seeing justice done over the post-election violence? Or will it be dismissed as one set up specifically to secure the acquittal of the ‘Ocampo six”?
The writer comments on topical issues
Posts
Following the post election events in Kenya, and the widespread chaos that rocked the country, voices of ODM leaders including the PM's were heard asking for mass action resulting to killings and destruction of properties. In Kisumu, Kikuyu's were slaughtered yet these do not seem to count when Kenyans talk of victims. We want to see those who asked for mass action to also go to the "Hague/heaven". If the ICC is soo political why are Kenyans so agreeable to it.The Hague is a bully and a mouth piece of the West. It seems Ocampo and ODM are together to remove Ruto and Uhuru so that Raila has no opponents- West-divide & rule policy. What leadership emerges when we limit the freedom of others from the scene? Kenyans you are indeed the sleepy country not to look at history. Why the Hague? Those sending you there do not subscribe to it. This is a project of America and Europe, yet Kenyan's including the educated and inspired are too blinded by tribal division not to see that the WEST wants Africa back at whatever cost and Raila and ODM are the puppets because they do not care about Kenya. All they want is power. It is no wonder even the lawyers among them echo the west to say that "all the kenyan systems do not work, therefore a need for international and the UN will help them rule". Perhaps, these guys should migrate to the west and "seek these positions where things work" and leave Kenyans to work and rebuild the nation from the stagnation since 2008. Wake up friends!!!!. In the 18th Century religion was used to conquer and subdue Africa. Today, media and UN are the new colonizing forces. I cry for Kenya for this beautiful country is about to be handed over/the Kenyans have been sold to slavery by leaders who don't even know how development happens except to use the proceeds from the sweat of Kenyans to maintain power and image. Please wake up Kenya, be wise, pursue peace and development, look out for the well being of the growing children to who the future belongs. For today you enjoy power, tomorrow it is gone, but left behind untold suffering. Be selfless and seek the wisdom of the just. God bless Kenya!!
ReplyDelete