Revv22's Blog

May 29, 2013

Constitution as the will of the Kenyan people, the AU and the ICC Affair

On the 1st of June 2013, Kenya will celebrate 50 years of Self-rule. A few days prior, the African Union (AU) commemorated 50 years of its formation following a successful pan-African push for self-determination and independence from European colonial masters. Among the more notorious colonial masters was Britain which colonised about 18 countries and whose Queen Elizabeth celebrated her Diamond Jubilee as ruler* of the commonwealth just months ago. It is indeed a Jubilee year, 2013.

Looking at the achievements of the three, with regards to missions set out 50 years ago, I can say that the mission is still relevant as the vision is yet to be achieved.

For Kenya, we still have to tackle ignorance, poverty and disease in a cultured environment of intolerance, corruption, impunity and a warped sense of democracy.

The AU has managed to successfully hold colourful ceremonies commemorating events such as changing its name from Organization of African Unity; holding AU Heads of State Summit and in the meanwhile failed to have such celebrations to signal the establishment of viable institutions such as courts with the capacity to handle problems such as human rights violations with an African dignity.

The ruler* of the commonwealth has managed to remain so, a ruler, since despite the existence of the AU, free African states colonised by Britain continue to have High Commissions as opposed to Embassies as the nomenclature for their diplomatic missions.

With the jubilee year, an appropriately titled Jubilee Coalition was declared the winner of Kenya’s Presidential Election 2013 after our Supreme Court unanimously voted against petitions challenging the electoral body’s declaration. What followed was an inauguration ceremony attended by Heads of African states and other dignitaries including, Rev. Jesse Jackson of the US (there had to be a face from the US). Apart from the couple of the day President Elect Uhuru Kenyatta and Deputy President Elect Bill Ruto, two other African leaders received significant news coverage; Sudan’s Bashir for the alleged invitation and dis-invitation due to his ICC arrest warrant status and Uganda’s Museveni for his anti-ICC rhetoric that has become more elaborate in recent days.

In one inauguration event we had three main indicators of how high regard our African leaders hold the ICC. Firstly, in his speech, the sworn in president mentioned that he will continue to co-operate with the international community and respect the rule of law and international treaties. Methinks the “dis-invitation” of Bashir, second indicator, was a ‘walk of the talk’. Lastly, Museveni’s speech was to show that when pushed to the wall a dog could still show its teeth as a reminder of its willingness to save its own skin. This to me was a perfectly orchestrated PR plan as complete as the trinity.

The AU passed a resolution to push the ICC to refer the cases against two citizens of Kenya, Uhuru Kenyatta and William Ruto back to their home country. This resolution was proposed by Uganda’s Museveni consistent with what he said during the duos inauguration as president and deputy president of Kenya.  The support for this resolution was unanimous and only Botswana was brave enough to object to it. It was guised in the spirit of Pan-Africanism and Sovereignty, an argument that has become sacrilege to speak against. Listening to the speeches by invited guests from the diaspora, particularly the Caribbean, one could not fail to appreciate their perception and vision of Pan-African as an idea whose time is long overdue. It would however be a lie to say that Museveni’s elaboration of the ideal inspired the same confidence, especially with regards to his sincerity.

The ICC handling of Kenya’s 2007/2008 Post Election Violence (PEV) cases was a result of the peace accord signed by Kenyan leaders. The accord, drafted and debated by Kenyan leaders in the presence of Eminent African Personalities recognised by the AU, recommended that a tribunal be set up to investigate and try the perpetrators of violence locally. It gave a deadline to establish the courts and deliver timely justice to the victims and whoever shall be accused. When efforts were being made to push members of the Kenyan parliament to create laws enabling the setting up of a local mechanism, t parliamentarians, particularly those affiliated to the now ICC indicted, vehemently opposed it and coined the famous chant, “Don’t be vague, let’s go to Hague”.  Where was the AU, Museveni and his anti-ICC rhetoric, oh yes… he was enjoying the international courts help in dealing with the elusive rebel, Joseph Kony.

One may ask why the parliamentarians opposed a local tribunal.  Simple: Elections, presidential campaigns and the eligibility to contest in an election so as to occupy the only capacity that is immune from prosecution-the Presidency and Acting Presidency.

The drafting of the Constitution of Kenya, 2010 was a very elaborate, civilian involving exercise that appreciated not only the historical context of Kenyan Law and its applicability in pursuing justice, but also the PEV and how fresh it was in the minds and flesh of the citizenry. Kenyans drafted and voted for it and in Chapter Nine-The Executive, they were very clear on what circumstances would grant anyone immunity from prosecution for alleged crimes. It also enshrined the establishment of various acts and the constituting of bodies that would determine who was fit to hold public office and especially the only office that grants immunity.

To circumvent these hurdles in the face being mentioned as suspects, Uhuru and Ruto managed to rally their troops in parliament to ensure that no local tribunal was set up.

They would have to deal* with the ICC when the time comes. Ruto is on record saying that the ICC cases can take up to 99 years.

Having cases in Kenya would mean that every time any evidence is produced in court, the newspapers and other media would be splashing it in the headlines and their popularity would drop. Every time a witness testifies against them or fails to testify or recants his testimony, it would have been felt first hand by the person who knows a victim of the violence and perceived in a way that would not favour them. Most importantly, every time a victim took to the witness stand to give their story, the cameras would turn to the face of the accused and Kenyans would associate that face with the ‘monster that sponsored it all’, whether it was true or not. Perception is everything. Their opponents knew it and they knew it and I believe they acted on it as any ambitious politician would. Despite the existence of a vetting body and challenges to their candidacy in the High court, Uhuru and Ruto managed to vie for public office. How regulations saying “facing charges in court”, lost to “innocent till proven guilty” I will never comprehend because this wasn’t not a challenge to natural justice but a challenge to integrity. Moving on.

It is utter nonsense that AU resolution. I am sure they are aware Chapter Nine- The Executive chapter, in 143(1) says clearly that “criminal proceeding shall not be INSTITUTED or CONTINUED in any court against the president or a person performing the functions of that office, during their tenure of office. If the President is away and the Deputy President is acting in that capacity, then in my lay opinion, he shall be indeed ‘performing the functions’ of the office of the president. Therefore what the AU is effectively telling Kenyan PEV victims to be patient and wait for justice when Uhuru and Ruto retire, probably ten years from now.

This is the ‘later’, which Uhuru and Ruto would have to deal with the ICC. Kenya is a willing signatory to the ICC, and we could pull out of the Rome Statute anytime we want to but that would not be a remedy for already on-going cases that were instituted while we were till signatories. This is why pulling out is not an option. An in any case, Sudan positions as non-Signatories hasn’t offered Bashir any sanctuary from the arrest warrant on his head. Heck, he couldn’t even step into Kenya for the Jubilee inauguration. Many are forgetting that Museveni himself promised to execute the arrest warrant if Bashir steps on Ugandan soil. Someone pointed out recently that when you look at the legal battle, especially in Uhuru’s case, you will find that it is white British lawyers, against an African, femal prosecutor. And we say our leaders have confidence in our local mechanisms?

There are many who are using 143(1) to mislead Kenyans on the level of immunity that a sitting president has. 143(4), leaves no ambiguity on the issue and says, “the immunity of the president under this article shall not extend to a crime for which the president may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity.”

This was written by Kenyans and voted for by Kenyans at a time when we had experience something we did not want to experience ever again. It wasn’t written for Uganda, or East Africa or Africa but for Kenya. If we are to embark on Pan-Africanism as our chosen ideology, we cannot begin at a point of in-sincerity, selfish interest and convenience. Pan Africanism cannot be equated to reversed racism justified by sins of the father. The old colonial masters have to be challenged to compensate our people, but we cannot instil hate on our youthful population, especially not in a globalized world.  We must shun Museveni’s militarism when he blatantly accuses our ancestors and forefathers of being “weak” and “to blame” for slavery and colonialism. A leader, who kills democracy in his own country through violence, cannot be the role model that our young and vibrant president is to follow.

My word to Uhuru and Ruto; you are young and despite the fact that you need to clear your names before you have the full support of many Kenyans, your glass is half full and not half empty. Use this chance to break free of old-culture as you have already shown you are capable of. Make me proud to call you guys my president and deputy president.

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