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Termination or Deferral of ICC Cases Is Not Impunity

16 Nov

ICC-Hague

In my Star column this week ICC Termination Is Not Impunity, I make the case why this is so.

Excerpts:

Impunity is generally defined as an exemption from punishment or freedom from the injurious consequences of an action. Very few Kenyans knew or had heard about this word prior to the passage and promulgation of our new constitution.

Since promulgation, however, the word has become a household word and a weapon of choice for progressives. One’s position as to any issue and whether it’s accepted as progressive enough is couched in terms of whether in so doing one supports impunity or is against it.

That’s all well and good but as in many cases in life, it’s not always the case that the choice as to whether one’s position is for or against impunity cannot be that stark or clear.

– See more at: http://www.the-star.co.ke/news/article-143872/icc-termination-not-impunity#sthash.Cw3TOOkJ.dpuf

Impunity is generally defined as an exemption from punishment or freedom from the injurious consequences of an action. Very few Kenyans knew or had heard about this word prior to the passage and promulgation of our new constitution.

Since promulgation, however, the word has become a household word and a weapon of choice for progressives. One’s position as to any issue and whether it’s accepted as progressive enough is couched in terms of whether in so doing one supports impunity or is against it.

That’s all well and good but as in many cases in life, it’s not always the case that the choice as to whether one’s position is for or against impunity cannot be that stark or clear.

– See more at: http://www.the-star.co.ke/news/article-143872/icc-termination-not-impunity#sthash.Cw3TOOkJ.dpuf

Impunity is generally defined as an exemption from punishment or freedom from the injurious consequences of an action. Very few Kenyans knew or had heard about this word prior to the passage and promulgation of our new constitution.

Since promulgation, however, the word has become a household word and a weapon of choice for progressives. One’s position as to any issue and whether it’s accepted as progressive enough is couched in terms of whether in so doing one supports impunity or is against it.

That’s all well and good but as in many cases in life, it’s not always the case that the choice as to whether one’s position is for or against impunity cannot be that stark or clear.

Accordingly, it’s a big deal to have a president of any country hauled before the ICC other than in circumstances where a majority of the world would see it as justified.

There’s no justification for hauling Uhuru Kenyatta, a sitting president to stand trial for charges he is likely not to be convicted on. And even if he were, every indication is such a conviction could not survive an appeal therefore rendering the whole process a waste of time while at the same time belittling our sovereignty.

Put another way, had the situation been, hypothetically speaking, that Bensouda was handed an envelope containing Uhuru and Ruto’s names as suspects for having committed crimes against humanity after they were sworn in office, a prosecutor balancing the need to seek justice for the victims and the desire not to make things worse would have politely declined to prosecute the cases.

This is precisely what one can rightly assume would have happened had former president Mwai Kibaki’s name been in the envelope handed to Kofi Annan.

This balancing takes place all the time in countries that observe and respect the rule of law. But one can’t call it impunity because it’s a practice actually sanctioned under the law therefore it can’t be impunity.

On the other hand, a prosecutor doing the same balancing but merely wishes to make one an example as the OTP declared in this case would have proceeded to prosecute and try the cases knowing fully well there won’t be any convictions but plenty of an appearance of having fought a good fight for justice.

The latter happened and we can say the OTP can be given an “A” for effort but it’s now not worth risking plunging the country into further uncertainty and even turmoil to make a point that has already been made.

We can now take care of our own from here knowing the rest of the world is watching unlike before PEV.

– See more at: http://www.the-star.co.ke/news/article-143872/icc-termination-not-impunity#sthash.Cw3TOOkJ.dpuf

Put another way, had the situation been, hypothetically speaking, that Bensouda was handed an envelope containing Uhuru and Ruto’s names as suspects for having committed crimes against humanity after they were sworn in office, a prosecutor balancing the need to seek justice for the victims and the desire not to make things worse would have politely declined to prosecute the cases.

This is precisely what one can rightly assume would have happened had former president Mwai Kibaki’s name been in the envelope handed to Kofi Annan.

This balancing takes place all the time in countries that observe and respect the rule of law. But one can’t call it impunity because it’s a practice actually sanctioned under the law therefore it can’t be impunity.

On the other hand, a prosecutor doing the same balancing but merely wishes to make one an example as the OTP declared in this case would have proceeded to prosecute and try the cases knowing fully well there won’t be any convictions but plenty of an appearance of having fought a good fight for justice.

 The latter happened and we can say the OTP can be given an “A” for effort but it’s now not worth risking plunging the country into further uncertainty and even turmoil to make a point that has already been made.

 We can now take care of our own from here knowing the rest of the world is watching unlike before PEV.

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Posted by on November 16, 2013 in Law, Politics

 

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