Anyang Nyong'o: Let Ocampo Help us in Finding Solution - The Star

I read on page 18 of the Daily Nation yesterday an article by Thuita Mwangi, the Permanent Secretary in the Ministry of Foreign Affairs, arguing that it is premature for Luis Moreno Ocampo to come to Kenya on a mission to start the process of dealing with the post-election violence perpetrators through the International Criminal Court.

Mwangi argues that by allowing the ICC to get engaged in prosecuting the post-election violence perpetrators Kenya is compromising her sovereignty to an outside body. He further asserts that Africa needs to have "homegrown solutions" to her problems; this is not the time to deprive Kenya of the opportunity to deal with this issue her own way.

Both arguments are misguided, fallacious and somehow "escapist". When Kenya became signatory to the Rome Convention she did so as a sovereign state. If anything, that was the point when the so-called sovereignty was compromised; and Mr Mwangi was there to approve the deed. Further, allowing the ICC to get involved in our domestic politics was at our own invitation when people in political power stole the elections, plunged the country into a crisis and more or less invited popular rebellion against that very unpopular and unjust abuse of the people's sovereignty.

It is not really Kenya which is sovereign as a state; it is the people who are sovereign and hence express this sovereignty through the democratic choice of a government that can exercise state power legitimately. When this legitimacy is thrown to the winds by abusing the right of the people to elect their own government, then the people have a right to deprive the governors of political power and vest in a body that will respect the people's sovereignty.

The people of Kenya could have done this through a revolution when the democratic process was sabotaged. Wise counsel, however, prevailed and a cease fire was arrived at which led to the signing of the National Accord.

The Accord created an interregnum during which some crucial reforms must be undertaken under the supervision of the international community, including the ICC.

Let Mwangi not forget the importance of this interregnum; it recognizes the possible abuse of the principle of sovereignty by the authoritarian presidential system which can easily subvert justice and plunge this country once more into political chaos.

When both Parliament and the people of Kenya cried "don't be vague go to the Hague" it is this
propensity to subvert the cause of justice by the local judicial process, dominated by the executive branch of government, that they feared. That fear has not ebbed one iota. Mwangi, of course, would not share in this fear knowing full well that he speaks from the pedestal of executive power.

The legal apologetics that Mwangi advances do not impress, either by their logic or by their content. A Special Tribunal does not in any way contradict the possibility of local courts being able to try post-election offenders legally; it simply confirms that these courts, as used at the present conjuncture, would not ensure that justice is done and is seen to be done. The differences between the Waki and the Mbeki reports don't surprise.

When Waki forwarded the names of the perpetrators of the violence to Annan he did not do so by fiat. We ourselves had given him the mandate to do so by the very manner in which that commission was set up by us legally. We proceeded to accept the report and to commit ourselves to implement it.

As usual, as soon as the hour of reckoning arrives we now seem to be beating an about turn; the usual game of protecting impunity by its very beneficiaries that Kenyans have known since independence!

Yes, this opportunity presents Kenya with the challenge of strengthening her judicial system and showing the world that we can run a just, fair and democratic polity, free from the abuses of impunity and other forms of injustice. But you don't strengthen a rotten system; you radically change it and create a system that can work in consonance with the goals of social justice and human rights.

Anybody in his or her right mind knows our system is both rotten and in need of radical change.

The NARC government tried a radical surgery of the judiciary which became a cropper.

This time we need to do so with some seriousness, making sure that impunity does not rare its ugly head again. Rather than castigate Ocampo, we should welcome him as "a friend of the court", here to help us find solutions to our problems rather than compete with us in doing the obvious: dealing effectively with impunity and ensuring that justice is done to all those who messed up with the human and people's rights in Kenya during and soon after the last general elections.

Nyong'o is the ODM secretary general and Minister for Medical Services.

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