ICC big obstacle in Kenya’s path to true reconciliation

International Criminal Court (ICC) Prosecutor Fatou Bensouda. Kenya must have a sober and guided reflection of where the ICC process is taking the country. PHOTO | AFP 

In Summary

• Peace and enduring stability was the quest that commissions such as the Kriegler and Waki teams set out to achieve.
• Cote d’Ivoire was nearly torn apart by a political conflict, which is understood too often in the West as merely a contest between two political rivals, Laurent Gbagbo and Alassane Ouattara.
• The opposition, which called for a boycott, said the turnout was closer to 20 per cent. Some observers said the figure was probably in the mid-30s.
• Kenyan politicians have in recent weeks attempted to tar the whole of the ICC with one brush and dismiss the institution as incompetent and dysfunctional.

By BAGAKA OBUYA
More by this Author

The mediation team that ended the 2007/8 post-election crisis was unambiguous in spelling out the aims of the numerous interventions that fell under the category of Agenda IV items at the end of the peace talks that saved Kenya from descending into civil war.

Peace and enduring stability was the quest that commissions such as the Kriegler and Waki teams set out to achieve.

They were designed to help put the country’s pursuit for durable harmony and social cohesion on a surer footing and to ensure Kenya would never again return to a situation marked by the anarchy and violence that threatened the nation’s future in the two months which followed the disputed 2007 presidential election.

And after eight years and only two years before yet another presidential election, it is time for Kenyans to ask hard questions about the path of reconciliation the nation has embarked on and what needs to be done to cement the relative peace the nation has enjoyed since February 28, 2008 when the peace agreement was finally struck.

There can be no question that Kenya has in recent years recorded one of the most impressive recoveries from a period of deep conflict ever witnessed in Africa.

In terms of the far-reaching institutional and constitutional reforms that have been implemented in the wake of the 2007/8 post-election crisis, Kenya perhaps occupies a pedestal shared only by South Africa; which upended the institutionally racist Apartheid order with a constitutional reform package that was seen as unthinkable in the early 1990s, when many expected that country to descend into chaos and violence.

INSULATION OF INSTITUTIONS
The Kenyan experiment with institutional reform in the wake of conflict, most particularly the endorsement of a new constitution that sharply reduced the powers of the presidency and circumscribed the president’s ability to act unilaterally by offering Parliament, the Judiciary and other institutions greater power, represents an extraordinary step in the path towards conflict prevention.

The insulation of many institutions from Executive fiat, the dispersal of power from the centre to counties and the adoption of a bill of rights as progressive as any in Africa outside South Africa certainly contributed to burying the ghosts that triggered a near-civil war in the country and contributed to the peaceful 2013 elections.

Yet as noted in the pages of the Nation in recent weeks – in a welcome and surprising addition of voices that hold a contrary view to those of the activists that have dominated debate unchallenged since 2010 – it is an inescapable fact that the greatest danger to the path of reconciliation and progress the nation has embarked on lies in the consequences that may spring from the implementation of lopsided justice.

In the last few days, the west African nation of Cote d’Ivoire, once a shining symbol of progress and stability in Africa (it’s capital Abidjan was famously described as the Paris of Africa) held an election, which showcased in vivid detail the dangers that spring from the pursuit of the Nuremberg model of justice – including punishing only one side in a conflict – and imagining that such an approach can lead to durable stability and peace.

Cote d’Ivoire was nearly torn apart by a political conflict, which is understood too often in the West as merely a contest between two political rivals, Laurent Gbagbo and Alassane Ouattara.

IMPORTANCE OF RECONCILIATION
In fact, the two merely represented the faces of opposing sides underpinned by what the scholar Mahmood Mamdani has called “issues and constituencies”.

In essence, Gbagbo represented the camp of the Ivorians primarily in the south who claim the status of indigenes and who were ranged against the migrants from neighbouring countries such as Burkina Faso, who are settled primarily in the cocoa fields in the north and who formed the primary constituency of Mr Ouattara’s political movement.

This was a conflict that wiser heads would have resolved through an approach that understood the complexity of the issues at stake and appreciated, like Mamdani, the importance of reconciliation and the need for survivors to live, cheek-by-jowl, together in a country which they must all share whether they like it or not.

Instead, with the inevitable hand of France not too far behind the scenes, the International Criminal Court (ICC) was called upon to haul away Laurent Gbagbo to The Hague.

Seven hundred of his top supporters are now political prisoners in Ivorian jails.

The election last week, therefore, turned into what an opposition leader called a “parody”.

Most people in the south refused to take part. The electoral commission declared a turnout of about 53 per cent.

FORLORN DISPUTATION

The opposition, which called for a boycott, said the turnout was closer to 20 per cent. Some observers said the figure was probably in the mid-30s.

Regardless, the voice of one old man interviewed by the BBC in a district in the south where polling booths remained empty summed up the situation: “I’ve torn up my voter’s card because we still don’t have the results from (the) 2010 (election). Gbagbo is still in prison so we’re still in prison.”

Most fair-minded observers of the situation in Kenya will understand the need to avoid a similar scenario.

The forlorn disputation and the perception of lopsided justice that serve as the defining features of Ivorian politics are a sure recipe for disaster in a society in which old resentments lie close to the surface.

Kenyan politicians have in recent weeks attempted to tar the whole of the ICC with one brush and dismiss the institution as incompetent and dysfunctional.

There are many eminent jurists at ICC and some people truly dedicated to the cause of justice.

But in many instances, the institution has also shown itself to be gravely susceptible to external pressure and, in some cases, to pursue selective justice in ways that raise serious questions about its credibility.

Innocent people have been dragged to the court by a function of prosecutorial incompetence and the use of ‘evidence’ gathered by compromised and highly partisan NGO functionaries.
WHY NO CONSEQUENCES?
Granted some individuals have been found innocent in cases where there were no heavy political overtones driving the trial but still, the prosecution team has made no substantial effort to raise its game and avoid the prosecution of innocents.

When Sudan’s Abu Garda was set free at the pre-trial-chamber after judges found no evidence to support charges, for example, the veteran journalist and filmmaker Julie Flint questioned why no consequences accrue to incompetent prosecution teams.

“It is an astonishing tale of incoherence, inconsistency and poor legal practice, surely unprecedented in a court of this stature...how did Abu Garda ever get into the frame, since the witnesses produced by the prosecution, in the opinion of the ICC judges, failed to substantiate any of the accusations levelled against him?”

In the Kenyan case, many have pointed out that a great problem that the country now faces is the fact that the two defendants that remain in The Hague in a trial that is now heavily discredited are members of the Kalenjin community, which raises the dangerous spectre of lopsided justice.

In fact, a greater danger may lie in the fact that, in agreeing, for example, to admit recanted evidence, there is the appearance the chamber is approaching the case with a fixed mind which will immeasurably heighten the danger that the case is viewed through Kenyan eyes as a travesty.

As pointed out by others, the plenary of the Assembly of State Parties, in adopting amendments to Rule 68 regarding the admission of prior recorded statements by the Court stated, unambiguously, that “...the amendments as well as provisional Rules shall not be applied retroactively to the detriment of the person who is being investigated or prosecuted or who has been convicted.”

A very clear and simple statement. To the astonishment of many observers, however, a majority of the chamber went on to admit this evidence ignoring even an undertaking by the court’s legislative organ, the Assembly of States Parties, that the rule would not be applied retrospectively to the detriment of accused persons before the court.

UNRELIABLE WITNESSES
It is quite extraordinary that a court of the stature of the ICC will contemplate relying on the evidence of witnesses who offer contradictory in-court testimony to that recorded by the prosecution and will allow the prosecution to cherry-pick which version of events they feel fit their narrative and expect that to ultimately guide the decision of the judges.

Kenya must have a sober and guided reflection of where the ICC process is taking the country.

It has been eight long years down the road and we are now entering an electoral period. Is the drawn-out ICC process a help or hindrance to the reconciliation process?

There is no doubt that crimes were committed and the country needs to find a way to heal and that victims feel all is not lost.

Whether the Nuremberg model will help Kenya along the path of healing or turn it into an example of the failure of perhaps well-meaning; but ignorant external liberal internationalist interventions, is a question which requires urgent consideration. Kenya can’t afford to be the newest Libya or Iraq, a victim of external interventions that leave only instability in their wake.