By MAKAU MUTUA
Think of Kenya as a big “room.” Well — there’s a big elephant in the “room.” Everyone knows it’s there, but no one is willing to say so publicly. Let me ask a question about an issue Kenyans are discussing privately but are not talking about in public. Will the Ocampo Four travel to The Hague to stand on the dock for charges against humanity? You can take this to the bank — people behind the Ocampo Four have decided to “flip the bird” at the International Criminal Court.At what cost
These people are those on President Kibaki’s side in the coalition government. Put differently, the Kenya Government will defy the ICC. But why, and at what cost to Kenya and President Kibaki? In his State of the Nation address in Parliament weeks ago, Mr Kibaki underscored my point. He said that “Kenya” was working to have the Ocampo Four tried locally.
I was shocked. I don’t know the “Kenya” to which President Kibaki was referring. The last time I checked, a majority of Kenyans still supported the trial of the Ocampo Four at The Hague. No one who believes in justice for victims can take the President seriously. But those who want to shield the Ocampo Four from justice were cheered by the President’s comments. It boggles my mind why the focus of the President is on “saving” the Ocampo Four, and not doing justice to the victims. There’s trouble ahead.
The Ocampo Four — Deputy Prime Minister Uhuru Kenyatta, Eldoret North MP William Ruto, Mr Francis Muthaura, and journalist Joshua Sang — are in sharp focus. Like the terminator, the ICC is moving inexorably to try them. It seems nothing will stop the world court from putting them on the dock. Not even President Kibaki.
Which begs the question — what will the Ocampo Four, and President Kibaki, do when the ICC summons them for trial? It seems to me that some people have laid the groundwork to rebuff the ICC. Think about it. Nothing that the government has done suggests otherwise. Here’s my inarguable evidence — don’t just read the tea leaves.
First, Mr Kibaki and his allies didn’t establish a local tribunal. They mistakenly believed the ICC would never act.
Secondly, Mr Kibaki sent VP Kalonzo Musyoka on a fool’s errand to sabotage the ICC at the UN and the AU. That “shuttle diplomacy” failed miserably.
Third, the government lodged vexatious legal challenges at the ICC. Fourth, Mr Kibaki tried to pack judicial organs with his hand-picked cronies. Mr Kibaki then reshuffled the Cabinet to sack pro-ICC Justice minister Mutula Kilonzo. He replaced him with the pro-Ocampo Four Saboti MP Eugene Wamalwa.
Now Mr Kibaki wants the cases transferred either to the East African Court of Justice or the African Court of Justice. Both are impotent and feckless institutions. It’s true the Judiciary under Chief Justice Willy Mutunga is undergoing serious reform. But the Judiciary alone can’t do anything. It’s handicapped – like a torso without limbs. The police, the DPP, and the AG must be reformed for the Judiciary to work.
The Executive must put “elbow grease” to demonstrate political will to end impunity. None of this — zilch — has happened. That’s why the President’s State of the Nation address on the ICC is empty rhetoric. It was more evidence that the President has no intention of supporting the ICC trials of the Ocampo Four. Quite the contrary, he’s determined to stop them.
This is the question — is the President prepared for the consequences of his defiance of the ICC?
Let’s game this out. My view is that the forces against ICC may succeed. The Kenya government — in the person of President Kibaki — will then be required to ensure the four attend court. I don’t think Mr Kibaki either will, or has the guts, to enforce that kind of order. Which begs the question — what will the fallout be on Kenya and President Kibaki? I have bad news. The government defying the ICC could result in several consequences — all dire. The first will be diplomatic isolation. President Kibaki will have put Kenya on a track to pariahdom. If you doubt me, just look at Sudan.
Senior government officials and their families may be barred from travel abroad. Financial sanctions may be laid on Kenyan banks that do business with the Ocampo Four and targeted government officials.
Travel advisories to tourists may be intensified. It’s not outlandish to speculate that the ICC may even take a second look at investigating more Kenyans for the 2008 violence. The ICC may want to know more about what President Kibaki knew about the violence. This could be a slippery slope for Mr Kibaki. That’s why Mr Kibaki and all Kenyans must ask themselves a central question: why risk personal and national catastrophe for the sake of saving four individuals? Are the Ocampo Four larger than Kenya?
Are they more important than the 1,333 dead, the many injured and looted, and the hundreds of thousands displaced? Where, I ask, is Kenya’s soul as a nation? Will Kenya’s political, bureaucratic, business, and intellectual elite go down with the Ocampo Four? Will they risk the fate of Kenya’s 40 million people to save four individuals? I hope not. Makau Mutua is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the KHRC.