1. Stability,
Healing, and Reconciliation.
Since the two communities- Kikuyu and Kalenjin- who were
adversaries in the 2007 elections have since reconciled, the ICC process comes
as a thorn in the flesh. It reignites old wounds. What happens if one of them
is convicted, or if both are convicted? Although Kenya definitely has a definite
power structure in the constitution, symbolically, the president is the symbol
of national unity. His absence will cause jitters, never mind if he has put in
place effective governance structures while he is at The Hague.
2. Sovereignty.
The rallying call of the Jubilee campaigns was sovereignty,
and fighting for African dignity. They argued that the ICC court was out to
destabilize Africa; and is a court that is
being used by the West to finish off African
leaders. Matters did not help that
it was perceived that the CORD leader, Raila Odinga, was allegedly favoured by the West. For
example, according to many anti- ICC proponents, Syria,
Afghanistan, and Libya
are all places that the ICC should have dealt with before coming for the Kenyan
cases. Moreover, the funding of the court is mostly by Western countries. Some
also argue that the evidence used to draw up charges for the three accused at the Hague
was done by the civil society-most of which are funded by Western countries.
The ICC supporters argue that the ICC investigators should have gone to the
grassroots to collect the evidence. They further argue that all the 20 plus
names of the Waki list should have been charged, and besides, the people who were contesting for the Presidency in 2007- Mwai Kibaki and Raila Odinga, should have borne the highest responsibility-but they have
never been charged.
3. Accountability.
Jakoyo Midiwo, in his arguments against Kenya withdrawing from the ICC, said that the
ICC is the big brother that Kenya
needs. He says that the Judiciary may have been reformed, but the same old
forces that are resistant to change are still there. Besides, he continues that
Kenya took itself to the
ICC, and the very members who are advocating for Kenya to pull out of the ICC were
against the formation of a local tribunal by chanting that ‘Don’t be Vague, Go
to Hague’. Those who support him also argue that the reason that almost all the
accused at the ICC are African leaders is because of the general poor level of
governance in the continent, compared with governance elsewhere in the world. They
argue that the US
does not need to be a signatory to the ICC, because it has a fairly robust and
transparent judicial system. What happens when a rogue dictator-Idi Amin style,
comes along and the local system is not strong enough to counter him?
Way Forward.
The ICC is a legal process, not a political one. However,
the court probably does not appreciate the sensitive nature of the Kenyan
cases. It does not know, or perhaps care, of what the implications of its
rulings will be. On the other hand, no one doubts that grave crimes were
committed in the 2007/08 post election violence. But the big elephant in the
room will always be- Who was responsible for the 2007/08 violence. Who/which
people should be brought to justice if at all?
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