AN Open Letter to H.E. Emilio Mwai Kibaki, President of the Republic of Kenya
Dear President Kibaki:
Many including this writer did not believe you could have personally conjured or approved a number of things that happened prior to, and immediately following the elections of December 27, 2007 that can be said to be hardline and contrary to your sworn oath of office. This is because your laid-back style of management coupled with your history and background just does not reveal or paint the picture of that kind of hardline, take-no-hostages, shrewd even reckless politician. It simply does not and the writer has this in mind as he writes to you.
Today, the International Criminal Court (ICC), summoned the six Kenyans named as suspects in the post-election violence that brought our country to the brink of a civil war in 2007. These six are commonly referred to as the Ocampo Six because of their number and the name of the ICC prosecutor prosecuting their cases, Jose Luis Moreno Ocampo.
Two of these suspects, your excellency, Uhuru Kenyatta and Francis Muthaura, serve in your administration as your Deputy-Prime Minister and Minister for Finance and Head of Civil Service and Secretary to the Cabinet, respectfully. A third, William Ruto, is now closely allied to you and may as well be one of your closest advisers if not a special feature in your own plan for your successor. The other three have no known close association with you currently but one of them, Hussain Ali, was your Police Commissioner during the 07 elections.
Prior to the ICC issuing summons for the Ocampo Six, you stepped up efforts to lobby the UN Security Council in hopes of having prosecution of the Ocampo Six deferred, contrary to the wishes of a majority of Kenyans and your own previously agreed to commitment to cooperate with the ICC in prosecuting these cases.
A majority of Kenyans are of the view, however, that your stepping up efforts to defer the prosecutions was unnecessary and an exercise in futility, especially given the position taken by the United States and the United Kingdom, namely, that they will veto any resolution granting such deferment. Now that the ICC has issued summonses for the Ocampo Six, therefore rendering moot your efforts to defer, you will agree the taxpayers’ money spent on these efforts was a waste.
That being said, the question now is, what next? What are you going to do, given the ICC has issued these summonses? Are you going to cooperate with the ICC or not? The wise thing to do in the view of this writer and most Kenyans is you need to cooperate with the ICC, otherwise our country which is barely trying to recover from the woes of 2007 will once again plunge into chaos and turmoil or at best emerge as a pariah nation with concomitant undesirable consequences.
It is not difficult, however, to see why making a decision to cooperate is a difficult one; after all, the accused, especially UMR (Uhuru, Muthaura, Ruto) are close to you personally and politically and three of them Muthaura, Ali and Uhuru (MAU) are accused of acting to advance your political interests but oddly Kosgey, Sang and Ruto (KSR) are the odd ones out in this context, given they are accused of acting not in your interest as they were indeed in the opposition at all relevant times.
Complicating this scenario for you, is the fact that the country is gearing-up for the next election circle when your successor is to be elected. The Constitution provides that those elections be held in December 2012 so for purposes of this letter the writer assumes that to be the date the elections will be held. Given all of this, it would appear on the surface that you are indeed in a conundrum but it need not be.
Your excellency, let this writer recommend a course of action that he believes you can undertake consistent with your obligation cooperate with the ICC and to also meet your political objectives without undermining your role as the president of our nation in light of the foregoing facts and that is, bring your partner Hon. Raila in this mix.
You attempted to seek deferment of the ICC prosecution on grounds that were flimsy at best and that’s why the United States and Britain declared your request dead on arrival. There is, however, an opportunity to successfully secure a deferral from the UN. Article 16 of the Rome Statute under which the ICC operates provides as follows “No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.”
The primary reason why the US and UK did not agree with you on the deferral and promised a veto is because they did not believe the reasons given for the request were genuine to warrant a deferral under the ICC rules. That Raila did not join you in the request further sealed this fate much to the chagrin of his opponents.
As you recall, and this is the basis of this recommendation, both you and Raila attempted to have a law passed to set-up a local tribunal to try perpetrators of post-election violence locally but a majority in parliament opposed the move all the way resulting in ICC taking up the cases as a matter of last resort.
Your excellency, as you also know, the reason we are in this ICC quagmire now is because the forces of impunity and the absence of a judicial system to try the post-election violence cases locally absent substantial judicial reform combined to force the ICC upon us.
Now that we have since then passed a new Constitution and most recently demonstrated a parting with the old ways and a reaffirmation of our commitment to implement it, it is plausible you and Raila can now come before the UN Security Council and plead the case for deferral on grounds the necessary reforms are underway and that the issue of post-election violence will finally be addressed locally under a new judicial system immune to executive intervention or influence.
If this were to happen, the writer believes the US and Britain will lift their block and allow passage of a resolution granting the deferment under Article 16 of the Rome Statue. This outcome is desirable because it will accomplish 3 things: First, it will unify the country again; at least for now akin to the temporary truces we have seen in the coalition over time albeit this time will be far more significant in what it would avoid.
Second, it will remove Kenya from the international scene and allow us to wallow in the customary local dirty politics in a climate where temperatures are law as opposed to where are now and seem to be heading absent a decisive action by you that takes care of the interests of our nation first such as the one suggested by the writer.
Third, and most importantly, it will remove the ethnic factor in the equation. As stated above, your excellency, the writer does not and neither do most Kenyans believe you are inclined to take a hardline position regardless of what jeopardy it creates for our country.
More specifically, it is not the view of this writer and many others that you will put our country in a position of reverse, after this much we have gone through merely to protect a handful of your pals or your political objectives for that matter; there are certain things greater than an individual or pride and top among them if not the only one in this context is the dignity and respect of a nation.
Finally, your excellency, it goes without saying that thousands of lives were lost, properties destroyed and innocent Kenyans lost their homes and are in camps even to this date. Establishing a mechanism to bring closure to this tragic stain in our history as soon as possible ought to be everyone’s objective but acting in any way that does not take us back there or worse, ought to be paramount in your mind as you decide what to do next.
We obviously hope and pray that your decision will be the right one for the right reasons in the national interest.
Samuel N. Omwenga, Esq.