The Hague: causing sleepless night for Kenyan politicians

By Ohaga Ohaga


“Human beings hate what they don’t understand and fear what they hate” This anonymous quote best explains the misunderstanding and hatred the Kenyan politicians have against the prosecution of post- election violence perpetrators in The Hague.

Once again, the ICC debate has taken center stage in my subject of interest this week. One might actually think I am enjoying writing so much about this topic that I can’t stop - the truth is, I don’t.

However, it bothers me that irrespective of how hard I try to clear my mind off the subject, it keeps coming back like bad toothache. So for the suspects that have their pants are on fire, learn to cope with it.

Having said that, my interest this time is not about the Hague per se but on the many political analysts and politicians who have over the past few days written, commented and tried to explain to us the implications of Kofi Annan’s move on handing over the envelop to the International Criminal Court (ICC).

To say that they have totally confused us would be an understatement. But then again, it could just be me.

Since Kofi Annan handed over the secret envelope to the ICC, many people have voiced their opinion on what they think of Annan’s move.

What has appalled me most nevertheless, is the rate and speed at which the Kenyan government through its Justice Minister Mutula Kilonzo and Foreign counterpart Moses Wetangula has reacted to the subject.

The two have come out uncharacteristically, breathing fire while trying to explain the consequences of Annan’s move.

Like the two good lawyers they are, they have done what they do best. Defend.
Wetangula is on the record as having said that the suspects of the post election violence will not be facing charges in the Hague anytime soon because, Kenya is sovereign state who still has the capability to efficiently prosecute the suspects and no one in his wildest dreams, can think or even term it as a failed state.

Mutula on the other hand, has used every opportunity to address the media and the nation in general on what he is doing about the Annan’s move and options available, for Kenya- constantly reaffirming that the suspects will not be facing Ocampo on the ICC until all available options are exhausted.

In both cases, I want to be fair and agree with them.

However, one thing that beats me is the extent of denial they have shown towards our inability to transparently prosecute the offenders.

Like I said before, I do agree with both the ministers in their statements.
Why? Because, when you refer to the ICC statutes which we are signatory, a state (in this case Kenya), can only be referred to the ICC, if it has shown the inability or unwillingness to carry out genuine prosecutions.

According to the ICC statutes, the “unwillingness” of the state to carry out genuine investigations and prosecutions may arise in three situations- sham national proceedings, to shield certain individuals; unjustified delay in commencing legal proceedings; and impartial proceedings.

If all these factors were to be taken into account, then we all agree that these possibilities have not been exhausted in Kenya and so by referring the nation to the ICC, is “a violation of its sovereignty”.

But what is sovereignty if we can’t even solve our own differences? Like agreeing on the results of elections?

Forget about sovereignty and let’s move on. Like I was saying, that even though we are “sovereign”, the Kenyan government has shown far too little effort in prosecuting the suspects- which leaves little doubt its willingness to try the suspects.

That is how The Hague remains relevant unlike the two ministers who still feel that The Hague is not the best option.

Allow me to remind you that when Waki commission concluded its inquiry, it recommended that if Kenya failed to establish and prosecute the suspects of the post- election violence within the stipulated period, the suspects in the secret envelope were to be handed over to The Hague.

Pause a second and let’s take stock. Did Waki do the inquiry? Yes. Were there recommendations that if the government failed to prosecute the suspects locally then they will be forwarded to The Hague? Yes.
Have we shown that we lack political will by charging the suspects? Yes. Did Waki give a deadline for persecutions? Yes. Has the deadline expired? Yes. Was the expired deadline further extended by chief mediator Kofi Annan? Yes.

Okay, enough of Yes. What’s my point? In one way or the other if you looked keenly and consciously at the Kenyan situation, you realize that our government hasn’t been keen on ending impunity in the country.

This is evidenced by the two minister’s political rhetoric’s that we have witnessed in the recent past. Their aim is politicize the whole situation so that we get distracted and find other ways and means of further delaying the justice we severely need.

Before I leave, please note that Waki is a lawyer and qualified justice who has a clean track record, he therefore must have looked at the evidence his commission gathered and adduced that the suspects are both liable for prosecution in the Hague or locally.

Those saying that we don’t have enough evidence for prosecution in the ICC are once again, very wrong!