Tag Archives: PEV

What Outcome Kenyans Should Expect Out of the International Criminal Court On PEV Cases

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.


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


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Posted by on January 9, 2012 in Law, Politics


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My Response and Thoughts On Land Policy Reform and IDP Resettlement II

As I sit here reading and reflecting on this issue on this Sabbath Day, I am seeing three solutions to this highly charged, thorny and complex issue of land and IDPs in Kenya: First, the IDPs should be resettled to the very places from where they were chased or run away from and do so for as many of them as can prove they actually did live and had a livelihood there. A new law should be passed to facilitate this, thus, if you were previously homeless but are now comfortably living in an IDP’s home and operating another IDPs kiosk as your own, it is time to get back to being homeless or finding another solution to your previous problems.

Second, if IDPs must be resettled elsewhere, then a law to provide for such resettlement must be passed to include among other things, making resettled IDPs under it ineligible to vote in those areas until at least after the next election circle or after there has been a complete re-examination of our land policy to ensure equity and fairness for as close to all as possible, whichever occurs first.

Three, a special land reform assembly must be constituted to address the question of land policy reform. This assembly should be comprised of elected leaders from each tribal area (and this is about the only time you’ll hear me suggest tribal consideration as a factor), so an assembly of approximately 40 members with an eminent non-Kenyan as its President (Kofi Annan or someone similar comes to mind) with a deputy elected by a super-majority of the members.

Parliament shall implement whatever recommendations the Special Assembly on Land Reform comes up with without delay, debate or amendment.

Maoni yangu tu.

Peace, Love and Unity.

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Posted by on April 23, 2011 in Siasa


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My Response and Thoughts on Land Policy and IDP Resettlement

I have said this so many times, my lips are tired.

I have typed this so many times, my fingers are tired and sore.

But I do it again here because it is important I say this to you, if you have never heard me or anyone say it.

This so much bent anger on land and IDP resettlement is not going to take us as a country anywhere; but anger or no anger, it’s is extremely naive to say one tribe will cling to power no matter what.

What we need in Kenya now and to the future, is all Kenyans to learn to love and live with each other in peace despite the wrongs of the past, which cannot all be cured.

PEV happened. Rwanda, from where hails my wife, had over 20% of its population, close to 1 million people hacked and butchered to death in 94 in less than 90 days.

Yes, over 1000 Kenyans lost their lives; Kenyans, not Kikuyus, Kalenjins, Kisiis, etc. The moment we accept this as the proper description, the far more we’ll go in this.

Yes, over 300,000 Kenyans are still in camps having fled their homes during the violence, again, these are Kenyans, not Kikuyus, Kalenjins, Kisiis, etc; just Kenyans.

But in context, this is not a problem we as Kenyans cannot resolve, if we are governed and guided by the principles of love for one another, which we are capable of.

Or to put it differently, the IDP issue is a symptom of an even larger problem we are not addressing which has to ultimately be addressed to bring all this to a close

And that is, Land Policy Reform. Hailing from Gusii as I do, I have over the years seen generational curving up of land parcels consistent with custom literally to pieces.

I told someone a long time ago that this land is going to be chopped into pieces people will start chopping themselves into pieces over it and its already happening.

So, my brother, take a deep breath, let’s come together and find common ground to address this complex issue without calling others haters when they call you the same.

Unfortunately, I do not see anything being done about this until after the elections which, if people rise above tribalism and elect a president based on leadership ability,

Then there is nothing we cannot tackle successfully as a nation, including land issues as long as those who lose accept and join with the winners to do just that.

This is not an impossible dream or wish; it’s quite the contrary very easy to achieve if people just learn to love one another and drop the hate, which is not a trait.

In the same vein, I have made the case and will continue to make the case on this blog and elsewhere that PEV does not belong in the Hague; let’s bring it back home.

And deal with it effectively and permanently.

More about this soon.

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Posted by on April 22, 2011 in Siasa


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