Kenya must be Cautious on ICC Process

Published on 20th December 2010

Ocampo with Kenya's Principals        (foreground)
Plans by legislators to repeal The International Crimes Act so that Kenya opts out of the Rome Statute will not insulate the country from its responsibility to its people and the world at large. Take the United States of America for example; the mere fact that it chose to be law unto itself costs it heavily. America has to spend heavily to secure itself from those who feel aggrieved by its global actions or inactions and have no formal due process to channel their concerns. Can Kenya afford this?

Kenya cannot afford to have her actions or inactions impact on others and simply walk away. Let us assume that our legislators care less about what happens to Kenyan families that loose their loved ones and their property; what about our neighbors? When we brew trouble for ourselves, our neighbors suffer. They too may establish their own mechanism of justice. If what the International Criminal Court (ICC) prosecutor  has outlined as activities of our top leaders during Kenya’s darkest hours of 2007/08 is true; it demonstrates what can happen either when people loose faith in institutions or when institutions become personal property for the privileged.

At the peak of Kenya’s darkest hours in early 2008, fuel prices in Uganda hit Ksh 350 per litre. The losses incurred by neighbors that rely on Kenya’s road network to import and export goods are yet to be fully quantified. If we opt out, we ought to countenance a surge in both internal and external extra judicial processes because Kenyans and our affected neighbors, Rwanda, Uganda, Tanzania, and South Sudan (among other countries) too grieve at what happened. 

Politicizing the ICC process may serve short term interests but breed long term trouble for the country. Short term thinking is what has brought Kenya to this level where its own institutions have had to surrender to international processes. A similar pattern of strategy is what led legislators to opt for The Hague and avoid establishment of a local tribunal. If we are still blinded by short term political interests, opting out of the ICC process will breed a monster that will jeopardize the stability of the East African region.

ICC or no ICC, a keen observer will agree that in a globalised world, so many eyes are watching what we do. Impunity may thrive or get sanitized by powerful communication experts but experience of powerful nations shows that there is a huge cost to it. The masters of impunity will never sleep easy. Kenya is in a “now we know how they do it” mood. At this stage, we have no idea who exactly the “they” are because that is for the courts to decide. It is a painful time for all those mentioned on Moreno Ocampo list, but their friends ought to be careful in their pronouncements and actions. In fits of passion to demonstrate loyalty, they may end up nailing individuals who may otherwise have escaped the “guilty verdict.”

The ICC process has revealed that the concept of democracy which puts much emphasis on electoral votes of registered citizens (of a given community) fails to appreciate the impact of the “ghost vote” from “global citizens.” The global citizen could be your immediate neighbor, neighboring country, or individuals who may directly or indirectly be impacted by what happens to you- the registered voter.

We should invest in incentives to justice and consider long-term effects of our actions. Kenyan leaders and the wananchi in general ought to exercise extreme caution on how they manage the ICC attempts to put an end to impunity.

By James Shikwati.

The author, [email protected] is Director of Inter Region Economic Network.


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