The ICC maybe called a political institution by its critics, but show me any court in the world which is not a creation of politics and political processes. The law itself is a product of politics both local and international. Politics is always inextricably intertwined within the social foundations of law in every society. So where does the law begin and/or end? Where does politics begin and/or end? Clearly, the divide between politics and law if any, is very thin and at times blurred especially at the international level.
But what is important is that courts including the ICC are manned by legal professionals not politicians! The ICC is one such court manned by legal minds and jurists of international repute with the relevant experience. It is guided by law and evidence not the politics of the day! The current attempts by Kenya to withdraw from the Rome Statute at this stage does not add any value to the ongoing cases neither does it augur well with the entire process of the international criminal justice system.
The attempt by Kenya Parliament as well as Senators to re-convene to discuss a Motion for withdrawal from the Rome Statute a few days prior to the scheduled commencement of the trial is the second instance such misguided and ill-timed political moves have been endorsed in the House. Are the movers of the motions telling us that the Government will not cooperate with the ICC now and in the future? What alternatives and options are they offering to exorcise the ghosts of the post-election violence that continues to haunt Kenya?
The move is merely political. Perhaps the politicians could direct their energies and such efforts to move the UN Security Council to lobby and/or secure a resolution under Article 16 of Rome Statute and Chapter VII of the Charter of the United Nations deferring the further prosecution and investigation on the Kenyan cases. Our politicians should act accordingly to convince the UN Security Council that continued prosecution of the Kenyan ICC cases amount or constitute actions that are a threat to the peace and stability of this country. This is not a herculean or impossible task in the prevailing circumstances.
We must be careful not to take political actions that inherently appear to antagonize Kenya with the Assembly of State Parties to the ICC, the international community or appear to be calculated or deliberate political interference with the due process of the court and/or contemptuous of the ICC process. Such moves could turn out to be counter-productive and prejudicial to the accused persons. Short of the foregoing, politicians should leave the ICC cases alone and let the defence counsel present and execute their defence strategies for the accused. The defence counsel do not require the political backing or motions in Parliament as part of their Defence.
Kenya finds itself in this political and legal quagmire largely because of the failure of politicians and politics in the Tenth Parliament to pass necessary laws to establish a local tribunal or other courts to deal with the 2007 post-election violence cases. This must be a lesson for current and future politicians to always take political decisions in the interests of the nation rather than pander to partisan individual or ethnic politics. They must internalize the late Prof. George Saitoti's famous statement that there comes a time, when the country is more important than an individual. At all times, the country is more important than an individual. National interests must override individual, partisan, ethnic, county or other sectarian interests in governance. Justice must not only be done but must be seen to have been done to all suspects plus victims.
Ashford Muriuki Mugwuku is an Advocate of the High Court of Kenya and a former defence counsel at the UN – ICTR, Arusha, Tanzania
Email: ashfordmugwuku@yahoo.com
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