Naiorbi Star - Ndung'u Wainaina: ICC is no Panacea to Post-Election Crisis

The International Centre for Policy and Conflict urges the government to revisit the untenable decision it made on the July 30 on the prosecution of the masterminds of the post-election violence.

The legitimacy of a government is drawn from its people. The corpulent coalition's acts contravene the popular will of the people it purports to serve. This makes it lack legitimacy and the kind of authority necessary to execute its mandate.

Kenyans have decided that perpetrators of the violence must be prosecuted. It is not optional to the President, the Prime Minister and ministers; neither is it a choice between the International Criminal Court and the special tribunal. Rather, it is the two courts acting in complementarity to end impunity.

If you do not want Kenya to be labelled a pariah nation then that retrogressive decision must be discarded. We do not see the why the government cannot take over the Special Tribunal Bill and marshal MPs to back it up. This does not in any way imply that the ICC will drop its intervention; indeed the principle, of complementarity will apply.

The government must acknowledge and act on its international duty and obligations. Kenyans must heighten their vigilance by pressuring the coalition to unequivocally support the ICC and the enactment of the tribunal for Kenya concurrently.

Post-election violence justice is premised on an understanding that domestic stability, security and democratic governance are strengthened by a commitment to justice and accountability.

The ICC is not meant to overshadow a credible national judicial mechanism. Indeed, the justice system will essentially be delivered through the effective domestic justice setting.

We fear Kenyans, and particularly the victims, are deliberately being misled into believing that the ICC is the panacea to the problem.

The ICC objective was never to try all the cases that needed to be tried. It just focuses on the most symbolic cases, leaving the bulk of the task to the national mechanism.

The office of the chief prosecutor of the ICC has been monitoring crimes committed in Kenya since February 2008. Kenya ratified the Rome Statute in 2005 giving the court jurisdiction over Kenya. On July 3, the prosecutor Luis Moreno-Ocampo signed an agreement with the government requesting information on steps taken by the authorities to investigate and prosecute those most responsible for crimes against humanity.

Was the agreement a warning on the possibility of an ICC investigation in the country?

Yes. The agreement serves, in fact, several purposes: it is a way for the office of the prosecutor to request information that can complement the many communications it has already received. Ocampo seeks to alert the government of the possibility of conducting trials in case Kenya fails to do so.

What parties of the conflict could be targeted by an ICC investigation? All? If the individuals suspected of having committed the heinous crimes; politicians, civil servants, wananchi and the security forces. Would Kenya refer its situation to the ICC? This is very unlikely. The government is aware that by referring its situation to the ICC, all the parties to the conflict would be subject to the court's investigation. Politicians within the coalition would attempt to play politics with the ICC.

However, it certainly does not want the ICC to look into the whole picture of the violations and prosecute all the perpetrators with equal vigour and velocity.

How else could an investigation begin if the government does not make referral? In theory, an investigation could also begin by a Security Council referral, but this possibility is very unlikely in practice. The only probable way for the ICC to exercise jurisdiction in Kenya would be an investigation under Ocampo's own initiative.

Would Kenya claim that cases be deferred to its national courts? Probably yes. Although it might try to block ICC action initially, Kenya would prefer not to make a formal claim that its judicial system can handle the cases. This is because it lacks evidence to prove that its courts, police and the entire criminal justice have investigated those responsible.

Are there genuine national prosecution proceedings? The Attorney General's Office has failed to investigate those with the greatest responsibility, as well as those having committed the most serious crimes. In short, impunity is being handed out to perpetrators of serious violations of human rights.

This indicates that the state has neither the will nor the ability to punish the perpetrators of crimes against humanity, which means that in application of the complementarity principle, the ICC is to open the corresponding investigation with the purpose of obtaining justice.

Ndung'u is the executive director of the International Centre for Policy and Conflict.

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