I trust you are well and your investigations in Kenya and elsewhere are on course. I am an avid follower of your investigations and the entire ICC process especially in Kenya. This is perhaps influenced by my little knowledge of International Law; the law that the international community, yourself included, invoked to ensure justice to the victims of the post-election violence of 2007/8.
I believe the court is well aware of the criticisms by mostly African states in regard to the functioning of the court. Granted, impunity in the aforementioned states is seemingly the order of the day. I am inclined to believe the grievances of African states about the perceived bias of the court carries a lot of water, too.
You see, where there is smoke there is fire. Although your objective is to ensure that violators of International Criminal Law worldwide are brought to justice, precedence of the court demonstrated that individuals from African states are your key targets. Perhaps I should illustrate: China is known to have one of the greatest violations of human rights. In the same breath, we have North Korea and let’s not forget the USA in the supposed war on terrorism and consequently the war in Iraq. Whereas one my argue that China and USA are not party to the Rome Statute that created the ICC, it would also be fit to argue that Sudan, over which the court recently put out an indictment for President Omar Al-Bashir, is also not party to the same statute.
Allow me to go back to the ICC process in Kenya. Only recently, the Minister for Justice and National Reconciliation, Mr Mutula Kilonzo, stated that there is no need for Kenyans to be tried outside the country, perhaps implying the government would not be sending its citizens to The Hague for trial on the premise of state sovereignty and other fluid concepts of International Law that merely apply in theory; unless of course the state in question is a global hegemony or has nuclear weapons that can plunge us into the Third World War.
It is this same utterly fluid concept of sovereignty that informed the thought process of the government of Kenya to invite Al-Bashir for the promulgation of the Constitution on August 27 2010, which rubbed the court and the international community the wrong way. As a result, the court, through you, stated that Kenya would be an example to the world on its seriousness. I am, however, convinced that the tables could turn against you.
In your effort to make Kenya an example to the rest of the world, you must be objective, which is apparently lacking. Why else would you state that you will try only six individuals (never mind Kenyans believe you should try a minimum of 10) and the six are evenly distributed between the coalition parties? Does this not show that you have already pre-determined the perpetrators of violence and that your investigations will focus on collecting information/evidence that will back up your prior convictions?
This perhaps explains Kilonzo’s belief that the court should abandon its investigations and allow Kenyans to be tried in Kenya. From his perspective, although the current judicial system in Kenya is flawed, it makes no sense to take our very own to a subjective court.
In conclusion, you have been tasked with the very great responsibility to ensure that justice is not only done but must be seen to be done. To put it plainly, the ICC process, to a large extent, determines the future of Kenya in so far as peace is concerned. Thus you are obliged to ensure that those who bore responsibility, those who mobilised, incited, financed and planned violence are brought to justice, which is why your objectivity is important. The court must be free and fair, otherwise it is no different from the Kenyan courts.
While it is smart of you to make Kenya an example to the world (read African countries), it would be much smarter to use Kenya to redeem the image of the court to the same world you speak of. It is a much more prudent move that you will only achieve if and when you learn to separate issues. Leave Al-Bashir out of this and use the little time you have left to ensure your process and your investigations are informed by nothing short of objectivity. Seek to ensure that Kenya does not make an example of you
By JACKLINE MATHENGE,
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