In the article below published by the Standard Online, I share the same views I expressed in my Open Letter to President, Pre-Trial Division, International Criminal Court at the Hague.
In ideal circumstances, ICC judges are called upon to dispassionately apply the law to the facts established by the record before them or those proven at trial.
Unfortunately, however, the cases against the Ocampo Six are not ideal for judges to do this, which means decisions the judges make, including whether to confirm the charges or not or outcome after trial, must be informed from not just the law and facts, but also drawing from other considerations.
The preamble to the Rome Statue under which the ICC operates states in part that “all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time.”
Justice for victims
What is equally true but not reflected in the preamble, and therefore not an integral part of ICC jurisprudence, is the fact that there are idiosyncratic factors peculiar to any given culture not present in any other and therefore must be taken into consideration in initiating and adjudicating cases before the ICC separate and apart from those that cross all cultures.
Tribalism, a vice and stable feature in Kenya is one such an example.
To be sure, tribalism exists in other countries, including Rwanda where the ICC has, and continues to play its role in seeking justice for the victims of genocide in that country that occurred back in 1994.
However, even though that violence was primarily between two tribes, the Hutus and Tutsis, the level of hatred between the two tribes and underlying reasons for the hatred and ultimately reasons for the genocide is different from the hate or underlying reasons for what happened in Kenya in early 2008 and the reason the Ocampo Six cases are at The Hague.
It is important to understand that distinction for no outcome can be rendered with respect to the Ocampo Six that would be deemed justice or otherwise accepted by all concerned, unless these underlying reasons are taken into consideration.
Rather than going into a detailed exposition to analyse and/or explain these underlying reasons, it is sufficient to say, and there is enough in the record to reach this conclusion, and that is, the dynamics that resulted in the post-election violence in Kenya. There was evidence the elections that took place in Kenya in 2007 were rigged and this created an environment where violence took place not to exact revenge for the perceived wrong-doers in the flawed elections, but to settle old scores primarily between the Kalenjin and Kikuyu.
Those scores, unfortunately, have everything to do with land and not the elections of 2007.
As long as the land issue is not addressed to the satisfaction of these two communities, no outcome other than the non-trial or acquittal of both Uhuru Kenyatta and William Ruto is going to be seen as fair or just in their respective communities.
THE LAND QUESTION
At the same time, the trial and conviction of either and acquittal of the other will be seen as unjust in the eyes of the community of the one convicted and, therefore, foment even more tribal tensions between these two communities and be worsened only by the joining in of the rest of the country’s communities likely to ally with one or the other as a matter of political and tribal necessity.
That especially depends on whether such acquittal or conviction occurs in the heat of the campaign period in the country later on this year.
This is obviously a dilemma that the ICC court must resolve in the national interest of Kenya and, given where things are today, that certainly must be committing the cases to trial, to at least get the story right as to what happened and either convict both of these individuals or acquit both.
Not confirming the charges against the two, namely, Uhuru and Ruto, or acquitting both will leave the matter in status quo until the communities themselves successfully tackle the issue with the help of the national government, led by the next president to be elected later this year.
Such an outcome would not change the fact that the very prosecution of these Ocampo Six has forever changed Kenya in that we are unlikely to see anything even remotely close to what happened in 2008 because Kenyans know we are on a path to ending impunity locally and internationally. ICC is there to ensure no one even attempts to engage in crimes against humanity, let alone genocide.
I have previously proposed that a mechanism be put in place to criminally try the same suspects at home for common crimes requiring less rigorous proof as does conviction under the Rome Statute (ICC) but also pass laws to allow for civil trial to hold those charged civilly responsible for their offenses, if proven under the generally less exacting civil code, in the event they are acquitted in their criminal cases for lack of evidence or other reasons, including unwillingness to convict or tempering with the process.
Peace, Unity and Let’s Put PEV Behind US