Contrary to his detractors and out-of-hand critics, Vice -President Kalonzo Musyoka’s shuttle diplomacy mission to have the Kenya cases now being processed at the International Criminal Court at The Hague deferred for a year has borne considerable fruit. The shuttle diplomacy has been a great success.It was a herculean struggle undertaken by the VP and his superb team of diplomats, including a former Foreign Affairs minister like himself, a former Foreign PS, High Commissioner to London and Head of Civil Service rolled into one, and other experienced high officers of State, were both cheered and jeered as they went about their task, locally and internationally.
I am happy to note that even those who were most inflexibly opposed to the shuttle mission have started to see sense. Suddenly, although couched in different language, some of it mealy-mouthed, they are also seeking to support the drive to have a local tribunal try the cases now with the Chief Prosecutor of the ICC, Jose Moreno Ocampo. Talk about shifting not only goal posts but entire spectator stands!
This Saul-into-Paul Road to Damascus transformation has not taken place easily and it is beyond dispute that it has only come about as a result of the VP’s own far-flung exertions. According to impeccable sources in both New York and Nairobi, the change of both heart and mind first took place in some of the highest echelons in Washington and was then communicated to the recalcitrant in Nairobi on the basis of the fact that the US did not want to be seen to be the one shifting ground every which way but lose. Indeed, this is an early indicator of where the orders would come from if some of these marionettes were to take the reins of power in Kenya.
Kalonzo’s main thrust and point has all along been that the ICC is a court of last resort and that Kenya is not incapable of handling the cases now with Ocampo. Whatever else may be amiss in Kenya, we are neither a failing nor a failed state, far from it. What’s more, Kenya’s recovery from the post-election violence of 2007-08 has been both world class and of world record standards. No society in living memory has recovered from conflict as rapidly and as comprehensively as Kenya has since the PEV.
The National Accord that produced the Grand Coalition Government in February 2008 was followed by the completion of the 20-year-long constitutional review process ratified by the National Referendum of August 2010 and the Promulgation of the New Constitution in October 2010. In-between these landmark reform achievements, all but 37,000 of the original 650,000 internally displaced persons (IDPs) of the PEV have been resettled, again a world-record achievement in terms of reconciliation and national healing.
East Africa’s biggest economy, Kenya, is not the kind of country whose political leaders ought to be hauled before the ICC — Kenya is not a Somalia or a Liberia (before the estimable Mrs Ellen Joseph Sirleaf became President). There are no Charles Taylors lurking in Kenya’s political class and elite and if there were, we would be the first to know.
In fact, the so-called Ocampo Six — Deputy Prime Minister and Finance Minister Uhuru Kenyatta; Eldoret North MP William Ruto; Head of the Civil Service and Secretary to the Cabinet Ambassador Francis Muthaura; the Postmaster General, Maj Gen (Rtd) Hussein Ali; former Industrialization Minister Henry Kosgey; and broadcaster Joshua Sang — find themselves accused before the ICC of the worst effects and impacts of the PEV. The accusations seek to transform these terrible actions and events into the personal agenda of the Six.
Ocampo, who long ago vowed to make the Kenya cases exemplary in terms of massive prosecution and seeking the most deterrent sentences, holds these six to “bear the greatest responsibility” for all the atrocities and other depredations of the PEV, including such sexual crimes as mass rapes. He might as well throw in all traffic accidents, water shortages, broken promises, missed calls and domestic quarrels that took place in Kenya concurrently with the PEV!
The VP’s shuttle mission was supremely mindful of the fact that Kenya, particularly under the new Constitution, is more than fully capable of handling all matters arising from the PEV, including the complex issues of who “bears the greatest responsibility”. If all other sections, systems and processes of Kenyan society are in sovereign working order — including sanctity of title, contracts, licences, visas, work permits, international treaties, you name it — why not our investigative, prosecutorial, judicial and penal sectors, particularly given that crucial one year that Kalonzo has argued for with such passion and diplomatic total commitment? During that one year of deferral, the new structures and institutions of the Constitution, complete with entire sectoral reforms (for instance Police and Judiciary), can be put in place and functioning.
It is hugely important that Kenya be seen not only to be sovereign but to exercise her sovereignty. This is what it means to NOT be a failing or failed state. In its most modern, most up-to-date definition, sovereignty has the following four indivisible principles — territorial integrity; border inviolability; supremacy of the State (rather than the Church, Synagogue, or Mosque) and the function of supreme lawmaking authority within its jurisdiction.
One of the most penetrating criticisms of the ICC as an overbearing judicial entity was made by the 56th US Secretary of State and National Security Adviser Henry Alfred Kissinger — the man who invented shuttle diplomacy — in his great essay entitled “The Pitfalls of Universal Jurisdiction” and published in Foreign Affairs magazine in July-August 2001. Among many other piercing insights, Kissinger observed:“But any universal system . . . must not allow legal principles to be used as weapons to settle political scores. Questions such as these must therefore be answered: What legal norms are being applied? What are the rules of evidence? What safeguards exist for the defendant? And how will prosecutions affect other fundamental foreign policy objectives and interests?”
Above all, citing the case of former Chilean dictator Augusto Pinochet, Kissinger made the case for local tribunals as being based on dealing “with the charges against him in the courts of the country most competent to judge this history and to relate its decisions to the stability and vitality of its democratic institutions”.
In the case of the Ocampo Six, the country and jurisdiction most competent to judge the history of the PEV and to relate its decisions to the stability and vitality of its newly-reinforced democratic institutions happens to be sovereign Kenya.
The writer is media and communications adviser to the vice president
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