Tough trying to be good in a bad neighborhood

A few days ago a Kenyan judge ordered the government to arrest Sudanese President Omar al-Bashir if he ever sets foot in Kenya. Mr. Bashir has an outstanding arrest warrant against him from the ICC for crimes against humanity committed since 2003 in Darfur.

The ruling has since metastasized into a full blown diplomatic row; Khartoum expelled the Kenyan ambassador before rescinding the expulsion, and is now threatening to cut all trade ties with Kenya, expel Kenyans living in Sudan and deny any planes leaving or going to Kenya from flying in its airspace – if the government does not take back the ruling in two weeks.

The diplomatic row aside, the case has implications for the reform process in Kenya. The case is a test of the depth of the Kenyan judiciary’s new found independence from the executive.

According to Khartoum:

“al-Bashir expects Nairobi to scrap the arrest warrant within the next two weeks and not simply file an appeal.”

That is not how the judicial process works in a democracy. The executive cannot just scrap a judicial ruling. Within Kenya, for the sake of precedence the government must be seen to be complying with court rulings. The Chief Justice has already warned the executive against ignoring the court ruling saying that

“If a country chooses to live by anarchy, it must be ready to face the consequences of disregarding the law.”

It remains unclear what the executive will do given Khartoum’s two week ultimatum. Disregarding the court ruling will come with consequences for the individuals involved – in particular the Foreign Minister and the Commissioner of Police.

Ocampo’s successor to be named

Current Deputy Prosecutor of the ICC, Fatou Bensouda, will become the next top Prosecutor at the International Criminal Court. What does this mean for the future of the ICC, especially with regard to African cases?

JiC poses the following question:

….. Bensouda becomes the first African Prosecutor at the ICC. This fact will almost surely garner the most media attention. The African Union has been adamant that an African candidate would be selected, and they got their wish. It will now be very interesting to see how the AU deals with an African Prosecutor. The AU has often expressed frustration and, at times, outright hostility towards the Court for what it, and many of its member states, see as undue bias towards African nations and leaders. Now that the AU has its chosen candidate, will its attitude and rhetoric change?

I doubt it. The African Union’s opposition to the ICC was never predicated on the region of origin of the prosecutor but on the fact that, being largely a club of dictators and pseudo-democrats, it wanted to protect its own. That will not change with the retirement of Ocampo.

In my view the ICC remains to be a powerful source of leverage for African civil society groups against their rulers who oftentimes are inclined to use violence in an attempt to hold on to power.

Without the ICC, all these groups would have are a bunch of great powers and former colonizers full of bark and no bite and who will turn a blind eye to murderous dictatorship in the name of cheap oil and other commodities.

I hope that the court will continue in its task of being a voice to the voiceless, albeit with a little bit more tact (by which I mean the acknowledgement that justice is, ultimately, political).

I have previously commented on the court here, here and here.

Kenyan Court Orders Bashir Arrest, Sudan Expels Kenyan Ambassador

UPDATE:

The BBC reports:

Sudan ordered the expulsion of the Kenyan ambassador after a Kenyan judge issued an arrest warrant for Sudan’s President Omar al-Bashir, Sudan’s foreign ministry has said.

Mr Bashir is wanted by the International Criminal Court (ICC) for alleged war crimes in Darfur.

Sudan has ordered the Kenyan ambassador to leave the country within 72 hours.

It has also ordered the Sudanese ambassador in Kenya to return to Khartoum.

*************************************************************

A Kenyan court has issued an arrest warrant for Sudan’s President Omar al-Bashir over alleged war crimes in Darfur.

The ruling came after Kenya allowed Mr Bashir to visit in August in defiance of an International Criminal Court (ICC) warrant for his arrest.

The judge said he should be arrested if he “ever set foot in Kenya” again, the AFP news agency reports.

Kenya is a signatory to the treaty which established the ICC in 2002.

The new Kenyan constitution requires that the government implements its international treaty obligations. The ruling, though without much bite – I doubt Bashir will need to be in Kenya any time soon, has immense symbolism in the region.

It also matters for Kenyan domestic politics. Presently, a few high ranking Kenyan politicians – including the Finance minister, two former ministers and former police boss – are on trial at the ICC for crimes against humanity. The accused await judgment on the admissibility of their cases later this year or early next. The Bashir ruling means that if the charges against the “Ocampo Six” are confirmed but the government drags its feet in implementing an arrest warrant then the courts will step in.

More on the Bashir case here and here.

In other news, Uganda and Tanzania have rejected Khartoum’s petition to join the East African Community, citing “several issues like their democracy, the way they treat women and their religious politics.” Yeah right.

No ICC hearings in Kenya

The ICC Pre-Trial Chamber Judge Ekaterina Trendafilova on Wednesday decided that the trial of suspects of the 2007-08 election violence in Kenya will not be held in the country.

Great move.

I am of the view that holding the hearings in Kenya would have created an unnecessary distraction from the important task of implementing Kenya’s new constitution. Already, the bigwigs accused of masterminding the violence that killed 1300 and displaced over 300,000 Kenyans have ethnicized their predicament. Holding the hearings in Kenya would have handed them an opportunity for a circus of ethnicity-charged rallies and demonstrations in Nairobi.

The ICC continues to be a source of debate in Kenya and across Africa. Many have faulted the court’s apparent bias against African leaders. Some have even called it a form of neocolonialism. While admitting that the court could use a little bit more tact [principally by acknowledging that it cannot be apolitical BECAUSE it is an international court SANS a world government] I still think that it is the best hope of ending impunity on the African continent – at least until African leaders internalize the fact that it is not cool to kill your own people.

Among the cases that should have been handled with a sensitivity to political realities include Sudan and Libya [and may be the LRA in Uganda]. Kenya’s Ocampo Six, the DRC’s Jean-Pierre Bemba and Cote d’Ivoire’s Laurent Gbagbo, on the other hand, should not raise questions of national sovereignty. Murderous dictators and their henchmen do not have internal affairs. In any case sovereignty for many an African country means nothing more than sovereignty for the president and his cronies.

Related posts here and here.

africans should hold their noses and support the icc

Quoting the Economist:

These days the ICC’s biggest opponents are in Africa, which provides the court with its biggest group of members (31 out of 114) and is the scene of all the cases currently being investigated or prosecuted: in the CAR, Congo, Côte d’Ivoire, Kenya, Libya, Sudan and Uganda. Accusing the court of unfairly targeting African countries, the 53-member African Union (AU) is again calling for “African solutions to African problems”. It particularly dislikes the court’s increasing willingness to go after sitting presidents. At its summit next month it plans to extend the authority of its African Court of Justice and Human Rights to cover criminal as well as civil cases. International lawyers such as Richard Dicker of Human Rights Watch, a New York-based lobby, see this as an attempt to circumvent the ICC.

It may not work. The reason so many African cases are before the court is not because of bias; all the ICC’s cases have been referred to it either by the UN Security Council or by the countries themselves. It is because the standards of justice in Africa are often poor. Courts in many parts of the continent are packed with pliant judges keen to do their masters’ bidding. Moreover, attempts to create a regional system of African justice have so far failed. The African Court, under the AU’s aegis, has never issued a ruling of note. The AU’s pledge to ensure that Hissène Habré, held responsible for thousands of deaths as Chad’s president in the 1980s, is brought to justice has not been fulfilled. The Southern African Development Community’s tribunal, set up in 2005, has been virtually suspended since Zimbabwe refused to accept its ban on the expropriation of white farms and the 15-country regional club proved reluctant to enforce its rulings.

Many across the Continent have opposed international involvement in Africa’s affairs. Most of these Afro-nationalists have been dictators and those who depend on them, with a few true African nationalists on the fringe. My take is that Africa needs a conscience, regardless of where it comes from. As things stand tiny Botswana is the only nation that aspires to stand for justice. President Khama has condemned Mugabe, Bashir and those of their ilk.

South Africa, Nigeria, Ethiopia and the DRC, all potential continental leaders by virtue of their size, have been dismal failures at this task.

The ICC might be misguided in its attempts to decouple justice and politics. It might even bring terrible memories of the pre-sixties for those of our parents’ generation (calls of neocolonialism are all over the place). It may also be patently biased against African autocracy. But for now it is all most African peasants have against the goons that run their countries. Those who care about justice and accountability on the Continent should hold their noses and support the efforts of the court to give a voice to the voiceless.

what if ruto and uhuru were jailed by the icc?

Kenyan politics is currently in flux. Two key presidential candidates, Uhuru Kenyatta and William Ruto may be barred from running for public office next year on constitutional grounds. The key beneficiaries of such an eventuality will most probably be Raila Odinga and Kalonzo Musyoka, the Premier and Vice President respectively.

But what would such an eventuality mean for Kenya?

I’d say not much.

Over the last few weeks Uhuru and Ruto have been crisscrossing the country and holding chest-thumping rallies to prove to someone – either the ICC or the Kenyan political and economic elite – that they have the support of the grassroots. They have also issued thinly veiled threats that violence may erupt in the country if they are whisked to the Hague and barred from running for president in next year’s general election. Why does Uhuru and Ruto feel the need to do this?

In my view, and according to the rules of power politics, a tiger need not shout about its tigritude [I believe it is the great son of Nigeria, Wole Soyinka who coined this phrase].

That Ruto and Uhuru have felt compelled to shout about their support-base and issue threats tells me that they are feeling the heat. The fact of the matter is that the key backers of the duo are the ones who would lose the most in case of a resurgence of violence – think of Kenyan retail, banking, insurance, media and transport barons. These are the people that will lose the most when the Mombasa-Kampala Highway is impassable and Equity Bank closes everywhere. They know this and Uhuru and Ruto also know this. Furthermore, igniting further violence would most certainly attract sterner reaction from international watchdogs like the ICC and the UN Security Council.

There is also the [small] matter that now ordinary Kenyans will also know where exactly the violence is coming from.

Violence is therefore not an option. Not for Ruto and Uhuru. Not for their backers. And most certainly not for the rest of Kenya.

I suggest that the rest of Kenya call their (Uhuru and Ruto’s) bluff about violence next year.

Their battles with justice should not derail the much needed institutional reforms that will take the country out of the miasma of mediocrity that continues to engulf most of the Continent.

In the final analysis, the words of former VP George Saitoti will ring true: There comes a time when Kenya gets bigger than any single individual. Ruto, Uhuru and the wider political class are about to be schooled on this maxim the harsh way.

kenya’s ocampo six at the hague; kenyan politics will never be the same

The denouement of the saga is still uncertain. Two Kenyan political supremos, Uhuru Kenyatta and William Ruto, are appearing at the ICC in the Hague to answer to charges of crimes against humanity. The two are among six Kenyans accused by Moreno Ocampo for being the brains behind the violence in 2007-08 in Kenya that killed over 1300 and displaced close to half a million people.

The ICC trial of the six is likely to bring to light the hypocrisy of Kenya’s ruling class. For far too long the political elite have used violence as a political tool. Former president Moi perfected the craft and got away with it in 1992 and 1997 (more people died then than in 2007-08). If all goes well, it appears that this time around things will be different.

My hope is that the six accused will bring all to light so that Kenyans can know their leaders for who they really are.

There is no doubt that ethnicity will continue to cloud Kenyan politics. But it is also true that Kenyans will, from now on, know what is at stake when their leaders incite them to violence. They will know that this crop of people do not give a rat’s behind about their (the people’s) plight. They will fully understand why the government of Kenya can spend millions of dollars in defense of a few men while hundreds of thousands of ordinary citizens (and victims of crimes committed by the very few men) continue to subsist in limbo. They will understand why millions get spent every year to build offices, buy expensive cars and pay for the lavish lives of the ruling elite while ordinary Kenyans starve.

They will know that their tribal leaders do not have their interests at heart.

Whatever the outcome of the ICC trial, the mystic around Kenya’s ethnic leaders is gone. These little venal and inept men and women who like parading around as gods will no longer have the final word on everything.

what next for the kenyan political class?

The truth of the matter is that the whole political class in Kenya is implicated in the murder of 1300 people and the displacement of hundreds of thousands following the post-election violence of 2007-08. Their continued contempt of the ordinary mwananchi is evident in the fact that three years on the displaced still live in IDP camps littered across the country. The lack of widespread moral outrage at this fact speaks boatloads about Kenyans’ moral character.

The ICC appears to be closing on the “Ocampo six” – individuals identified by the ICC prosecutor Moreno Ocampo as most culpable at the highest level for the violence that rocked parts of the Rift Valley in early 2008. An ICC pre-trial chamber ruled yesterday that there is evidence to suggest that six prominent Kenyans are criminally responsible for crimes against humanity committed in 2007-08. The six include Finance Minister Uhuru Kenyatta, Cabinet Secretary Francis Muthaura, former Commissioner of Police Hussein Ali, former ministers Henry Kosgei and William Ruto and radio personality Peter Sang.

After the 2007 general elections Kalenjin speaking supporters of Raila Odinga attempted to drive out members of the “Kikuyu diaspora” in the Rift Valley Province, the “ethnic homeland” of the Kalenjin. Raila’s opponent in elections, President Kibaki, is a Kikuyu. It is suspected that local ethnic leaders, including William Ruto, Henry Kosgei and Peter Sang, were in charge of directing these attacks. In the most gruesome episode in Kenya’s darkest hour mobs locked ethnic Kikuyu women and children in an Eldoret church and set it on fire. More than 30 perished. Kikuyu elites, allegedly lead by Finance Minister Uhuru Kenyatta and Cabinet Secretary Francis Muthaura, retaliated by mobilizing the proscribed Mungiki gang to carry out reprisal attacks. It is also alleged that the former Police Commissioner, Hussein Ali, conspired to keep the police off Mungiku’s back. Hundreds of ethnic Kalenjins and Luos, among other supporters of Raila Odinga, were killed or uprooted from their homes in Nakuru and Naivasha.

Ever since the announcement by the ICC prosecutor that he would go after the six a radically political realignment has taken place in the country. William Ruto and Henry Kosgei ditched the party led by Raila Odinga and joined alliances with Uhuru Kenyatta to oppose the ICC indictment. President Kibaki, who at the beginning appeared to be willing to throw Uhuru under the bus, also became wary of the ICC after his chief lieutenant Muthaura was named as a key suspect. Presently, Vice President Kalonzo Musyoka has embarked on a “shuttle diplomacy” mission to convince African leaders and the P5 of the UN security council to lean on the ICC to defer the charges against the Ocampo six. Many African leaders, given their own records at home, have supported the initiative. But the mission at the security council hit a snag yesterday when US representatives indicated that they will veto any attempts at deferral.

What then for Kenyan politics? Any analysis must focus on the Kibaki succession. President Kibaki is term-limited and must step down in 2012. Two members of the Ocampo six – Uhuru and Ruto – are key players in the succession game. If the two are convicted Raila Odinga stands to gain the most. But it all depends on what alliances ensue following such an eventuality. Uhuru and Ruto might remotely throw their weight behind Vice President Musyoka to enable the latter to capture State House. Indeed, the three have publicly declared to be members of the (unfortunately named) KKK alliance (the three are from Kikuyu, Kalenjin and Kamba ethnic groups, respectively). The more likely scenario, however, is that the Kikuyu and Kalenjin communities will experience internal fractures once their key ethnic chiefs are out of the game. Uhuru is already facing an insurgency led by the fire-breathing former Justice Minister Martha Karua. Ruto has maintained a facade of unity in his ethnic bloc but money can do wonders in Kenyan politics, and his potential detractors among the Kalenjin – including a son of former President Moi – have wheelbarrows of it.

In short, everything is in flux right now. The substantive reaction of the political class – beyond the shouting match that is currently underway – will only be apparent when parliament resumes in a few weeks. Lawmakers need to pass crucial laws needed to implement a new constitution that was ratified last August. The breakdown of the voting patterns will almost inevitably show some nascent realignment. Like the wikileaks records of Kenyan politicians bad-mouthing one another to low-level US embassy officials have shown, Kenyan politicians are an incorrigibly unprincipled bunch who will not hesitate to jump ship if they realize that their party leader is in trouble.

The political temperature in Kenya will no doubt go up in the next few days. The unfortunate thing in all this is that the hullabaloo is will continue to be a distraction from the fact that 1300 innocent KENYANS died and hundreds of thousands were displaced in 2007-08.

mps pull kenya from the icc treaty

The Kenyan parliament passed a motion urging the country’s executive to pull out of the ICC treaty. It was left to Gichugu MP Martha Karua to be the sole defender of the ICC process with regard to Kenyan victims of the post-election violence that rocked the country in 2007-08.

The cases against the six named suspects will continue since the procedure to unsign from the treaty takes up to a year and even then signaling the intent to withdraw does not extricate a member country from its obligations while it is still a member. President Kibaki and Premier Odinga have yet to respond to the new developments.

My lukewarm support for the ICC process comes for the fore again: Recognizing the rights of sovereign states to solve their own problems (the Kenyans will not. No illusions about that. They will trade stability for injustice) and while registering my doubt of the ICC’s effectiveness at delivering justice (no apolitical body can do what it purports to do), I am still of the considered opinion that the Chads and CAR’s of this world need an international policeman to keep their tyrannical leaders in check.

Just hours from Ocampo’s big moment

Statement by ICC Prosecutor Luis Moreno-Ocampo on Kenya

ICC-CPI-20101214-PR614

As you know, tomorrow I will file two applications for summonses to appear for six individuals we believe are the most responsible for the post-election violence.

I believe summonses are sufficient to ensure the appearance of all six suspects. But as ICC Prosecutor, I am requesting that clear conditions be imposed on them, namely:

  • To frequently update the Court on all their personal contact details and whereabouts;
  • Not to make any personal contact with any of the other suspects, unless through their legal counsel to prepare their defence;
  • Not to approach any perceived victims or witnesses of crimes;
  • Not to attempt to influence or interfere with witness testimony;
  • Not to tamper with evidence or hinder the investigation;
  • Not to commit new crimes.

In addition, they must respond to all requests by ICC judges; they must attend all hearings when required, and post bond if the judges so instruct them.

These conditions are strict. They are in accordance with the Rome Statute and ICC rules.

Let me be clear.

If the suspects do not comply with the conditions set by the Chamber, I will request arrest warrants.

If there is any indication of bribes, intimidation or threats, I will request arrest warrants.

I expect the suspects to indicate to the Chamber shortly their intention to surrender voluntarily.

Source: Office of the Prosecutor

countdown to wednesday begins

On Wednesday a few Kenyan cabinet ministers, wealthy businessmen and security chiefs – mostly from central Kenya and the Rift Valley – will be exposed as suspects behing the post election violence in 2007-08 that killed 1333 Kenyans and displaced hundreds of thousands. Needless to say, this will have significant political consequences.

The expected political realignments following the initiation of this phase of the ICC process will shed some light on what Kenyans should expect come 2012. It will also be a litmus test on how much the Kenyan political elite is committed to reforms and fighting impunity. Kibaki and Odinga will either have to defend or cut loose some of their most trusted lieutenants.

In other news Laurent Gbagbo is still refusing to relinquish power in the Ivory Coast. Moreno Ocampo should warn him that if any more people die as a result of his refusal to obey the electoral outcome he will be held responsible.

Elections have consequences.