We Could Surely Do With a Little Guided Thought on Matters ICC

Below is a superb guest blog on the effort by the Kenyan National Assembly to withdraw Kenya from the Rome Statute and the ICC by Celestine Olilo.

Celestine Olilo is a Kenyan journalist who studied Communication Studies at Maseno University, and is working with a local media house currently. She follows politics keenly, and I requested her to give me a post on the ICC issue that has gripped Kenyans so much with trials against 3 Kenyans due to start on Tuesday, 10^th September 2013.

You can find Celestine on twitter here @cellie_beckie

By Olilo Cellestine        

My beloved country is making yet another attempt to withdraw from the International Criminal Court. 

From a neutral point, Mr. Adan Duale’s motion raised a rather germane issue that Kenyans would have had to deal with at some point. And the reason is simple. President Uhuru and his deputy, William Ruto’s election to office, despite the glaring charges of alleged post poll atrocities, brought about awkward complications that cannot be wished away easily.

Indeed, it is a country’s shame to have a sitting president being tried for heinous crimes at an international court. It is even worse, when the sitting president has such a huge following back home, that the Hague-based court is viewed as more of a bully, than a vehicle of facilitating justice to hundreds of thousands of the 2007/2008 post poll victims. 

The Jubilee Coalition launched a spirited campaign to break free from the ICC. The argument? We now have a new constitution, and the capacity to locally try the perpetrators.

Maybe so, but why now? Has it just occurred to the Jubilee Coalition that we could do with a little less patronizing from our Western big brothers? Is it really an innocent attempt to salvage the country’s pride at a time when the suspects’ cases are just kicking off? I say nay-nay.

Even if they were, Kenya’s deferral sends an unpleasant message across the continent (remember we sought support from the African Union earlier in the year?)That we are not willing to further cooperate with the Hague-based court, and worse still, that we are seeking ways of terminating the cases against our top countrymen.

In case we forgot, the ICC did not come hunting for the suspects, we invited them over, for the innocent reason that the 2007/2008 victims must find justice, justice which could not be found within the confines of our teething judiciary.

We happily signed The Rome Statute, set up a commission of inquiry that cost taxpayers an arm and a leg, and then waited in earnest to know the ‘contents’ of the Waki envelope. But when the names were revealed, we forgot all this before losing our minds to the staid ideology of ethnicity.  The ICC issue ceased to be a collective path to justice. It was now targeting our sons, our leaders…our tribesmen!  

The Rome Statute is clear in its 16^th Article on deferral. Two things: Even with the motion already passed, there can be no impact on the ongoing cases, and Kenya’s withdrawal can only take effect about a year after the request has been received by the United Nations. What am I saying? The charges facing the two leaders as well as that of radio journalist Joshua Sang are a fait accompli. 

For this, Adan Duale and those harboring the same thoughts are making a futile attempt that does nothing but soil the name of our country in the eyes of the International Community, but even worse, it impacts negatively on the President and his deputy. 

Why the sudden butterflies? Why the seemingly desperate attempts to evade the charges, to a point of staging a deferral? Do they know something I don’t? Ambassador Francis Muthaura and Major General Hussein Ali were acquitted by the same court. Surely the two did not need an entourage of MPs to rally for the deferral of their cases.

The Jubilee coalitions should invest in a lot more intellectual knowledge than the mere politics informing the deferral. They should start by acknowledging the fact that the ongoing cases played a huge part in ensuring peace prevailed during the March 4 elections.

Forget that pep talk about the ICC targeting African countries.  If you put zero external supervision and a country where disputed elections are the order of the day, the imminent result is an ugly bloodbath! If you doubt me, follow proceedings in the DRC.

If really we are grown enough to throw our two hands scornfully at the ICC, then let’s have some tangible evidence to back it up. The clashes in Trans Mara, Tana River etc. depict the same incapacity to deal with our problems that forced us running for help from the ICC five years ago. 

That IDPs are still languishing in abject poverty five years on tells me that we could still do with a little help in dealing with our internal demons.

I am not rubbishing my countrymen’s plea to pull out, all I am saying is that if indeed we have the capacity to successfully try and prosecute the 2007/2008 perpetrators, don’t just give me the lip service, show me that we can.

peeling back the mask: a quest for justice in kenya- my belated review

The book Peeling Back the Mask: A Quest For Justice In Kenya was written by Mr.Miguna Miguna and published by Gilgamesh Africa in 2012. The book is a political memoir meant to tell the world of Miguna Miguna's experiences from his return from Canada in 2007 to take part in the election campaign of prime minister Raila Odinga, to his acrimonious suspension as advisor on coalition affairs and falling out with the prime minister.

Miguna Miguna is a lawyer by profession who was, from 2008 until 2012 the prime minister’s senior adviser on coalition, legal and constitutional affairs, when he was indefinitely suspended. He had been a practicing lawyer in Canada where he had fled from Kenya after being arrested and tortured as a student leader in the late 1980s.

The book is written chronologically from Miguna's childhood in Magina village, in Nyando to his experiences in high school at Onjiku and Njiiri's high school. From there it tells of his coming of age as a young adult in NYS and university of Nairobi as a student leader. Finally, it details his subsequent arrest, torture in Nyayo house, exile to Tanzania, Swaziland and eventual asylum in Canada. In Canada, he eventually studied law and settled down, establishing a legal practice and engaging in political activism in university on issues affecting the black community in Canada. The book then proceeds to tell of his eventual return to Kenya to a political career in 2007 up to his suspension as advisor on coalition affairs in 2011.

By reading the book, the impression one gets is that MigunaMiguna was always a young man who was focused, extremely confident, well aware of his rights and not afraid to stand up to authority when he felt hisrights had been infringed upon. This insight goes a long way in understanding why Miguna raised so much hell when he was suspended by the right honorable prime minister as his special advisor.

The book’s main thesis is that RailaOdinga is not a reformer as many believe and that he is a nepotistic, incoherent and does nothing to investigate the alleged corruption by some of his aides. Says Miguna: “As this book will, I hope, show, I came to believe that Raila wasn’t honest or ready for the complete overhaul and transformation of the Kenyan society, starting with its leadership and politics. His rhetoric was intended to woo votes so as to ascend to power. Beyond that, he lacked genuine vision and commitment.” He goes further to state that Raila does not value loyalty. Miguna does this by quoting all the experiences he had with the PM in Canada, as an advisor and member of the ODM strategy team prior to the 2007 general elections, the ODM parliamentary nominations, post-election violence and subsequent mediation and setting up of the grand coalition government.

Miguna'sstyle is one of methodically quoting the dates, meetings and events so as to back up his arguments and theories.

Peeling Back The Mask: A Quest For Justice In Kenya comes across as a deeply personal book. It does provide a very thorough insight into the man MigunaMiguna, by detailing the experiences that Miguna went through from childhood till he was indefinitely suspended as the advisor to the prime minister on coalition affairs.

However, reading the “revelations” on the manner of sourcing for campaign funds and pre-election pacts, one gets the feeling that, “I know all this stuff, and sowhat’s your point exactly?”The point on ODM being made up of “KANU orphans” and Raila Odinga being more concerned with achieving power rather than the fighting for democracy, rule of law and natural justice cannot be lost on any casual observer of Kenyan politics since 2002 or even back to the reintroduction of multiparty politics in 1992.

That Miguna blames his lack of knowledge of Raila's true character and how ODM was to behave in the most trying times prior to and after joining the grand coalition government on “naivety and belief that the good was more than the bad.” To me this is just incredible. Miguna must have known what Kenyan politics stood for when he returned from Canada in mid-2007. Kenyan politics is governed by tribalism, backroom deals, opportunism and singular lack of ideological commitment to issues.

My evaluation of Miguna is that once he made his triumphant return to Kenya, despite the many financial, personal and mental sacrifices he made to the cause of Raila Odinga, he could never really fit in. his repeated criticisms of the lack of intellectual depth, planning and debating of issues in the presidential campaign amongst  all candidates and parties, the shoddy way in which the mediation efforts were carried out and the complete dysfunction of the grand coalition government are bemusing. I fail to see what is so surprising to him in all this.

Peeling back the mask: a quest for Kenyan justice is an OK book. The bitterness, the anger and the frustration so palpable while reading chapter after chapter do not dim the intellectual fire, legal sharpness and force of logic that Miguna Miguna brings to the table. Raila Odinga is not the reformer that many in the political class, media and general public purport him to be.

This argument is presented to the final conclusion with admirable intensity of logic and presentation of well-presented facts and evidence. Reading the book, I got the feeling that it needn’t have taken over 600 pages to get many political analysts to get round to that point of view. It is a book that is well written in parts, although many pages are gobbled up by unnecessary information that gets too detailed. However, I would still recommend anyone to read the chapters on the ICC, and how the ODM side of government eventually got to bargain itself into government following the chaos of early 2008.

Anyone hoping to read the book to get a feel of how the “two sides” of government have interacted since 2008, as well as how they came to being will not be disappointed. For those who have little knowledge of how Kenyan politics is carried out prior to elections, and what drives many of the political class to spend so much of their money and resources to get into government, this book is an invaluable resource. But few will change their mind on how they view Kenyan politics and their preferences. At the end of the day, peeling back the mask reveals open secrets on the Kenyan politics. It is all about the eating, and politicians are guided by their own material interests rather than deeper convictions and ideologies. Tribe is the key factor on how Kenyans vote and will vote. No side is better than the other.

And to me, how and if this can ever be changed is the real mask that we should be trying to peel.

tribalism: challenges to a united kenya

Many Kenyans, will tell you that one of the main problems that has affected Kenyans’ struggle to get a new constitution, good leaders, prosperity, peace and fight against corruption and impunity is tribalism. Tribalism is, according to Wikipedia, the possession of a stron“it is our turn to eat,”g cultural/ethnic identity that SEPARATES one member of a group from the members of another group. In the Kenyan context, this strong identity has been exploited “as a resource for interest groups for achieving secondary goals, such as increase in wealth, power or status, “by politicians.
Tribalism’s origins can be traced back to the colonial period where the British colonial state played the tribes against each other in a system of divide, rule and conquer, indeed in the book "it's our turn to eat" Michelle Wong says that some of the ethnic stereotypes such as the loyal kambas, the humble kalenjins and the slippery kikuyu can be traced back to this age.
Tribalism led to greater government expenditures for social expenditure in kikuyu areas, corruption benefits to insiders, privileged access to government and parastatal jobs for the kikuyu elite in Kenyatta’s government. Blatant discrimination against others, including intimidation and assassinations of popular leaders such as tom mboya, jm kariuki, pio Gama pinto etc who went against the grain or threatened the rulng elite’s interests occurred. The unresolved murders of these and many more injustices carried out by the two dictators who were the first and second presidents of Kenya, as well as kibaki to a lesser extent, have promoted ethnic tensions and a desperate urge by many Kenyans to bring about change, if not of this unjust system, at least of the tribe at the helm in government. When this failed at the general elections, the consequences were tragic, sobering and scary.
The multiparty system of democracy that Kenya adopted in 1992 ushered in a new era where a presidential candidate vied on the back of strong tribal support, and as a result more than 5 opposition candidates would vie against the then president Moi, helping him win the 1992 and 1997 elections without garnering 50% of the votes. This changed in 2002, and the opposition united to bring in change and evict the ruling party kanu from power for the first time since independence. But the honeymoon would not last. Scarcely a year had passed when the ruling party narc fragmented into pieces, with the faction led by Raila Odinga claiming that some MOU they had signed had not been honored when sharing the spoils of victory. This led to formation of a government of national unity, then the loss of the referendum by the government in 2005, and an increasingly tense and divided country leading to the 2007 general elections. With opinion polls pointing to a narrow Raila Odinga victory, increasingly violent, hate filled and propagandist campaigns and the unilateral appointment of some electoral commissioners by president Kibaki failed to raise the warning flags that the December 2007 elections would be a turning point on Kenya’s history.
What happened after the peaceful voting would shake the very foundations of the country to the core. The 2007-2008 crisis that followed these elections would lead to over 1000 dead, 600000 displaced, property worth millions destroyed and the economy of Kenya brought to its knees. After weeks of negotiations between the ODM and PNU factions, the National Accord and Reconciliation Act was signed by Raila and Kibaki on 28th February, a coalition government was formed with the mandate of bringing peace to the country, resettlement of the IDPs, political and legal reform, and the historical injustices as well as uneven distribution of wealth among different groups, the land issue as well as unemployment among the youth.
Fast forward to three and a half years later, are we close to solving these issues, and can we say that the political violence of 2008 will never again occur in Kenya? Some of the reforms that have been carried out include:
Passage of a new constitution. The new constitution creates a devolved system of government, that has the head of state and government as the president. It separates the three arms of government and strengthens the judiciary and national assembly at the expense of the executive. It also has a chapter on land, leadership and integrity and extensive bill of rights. How will this reduce tribalism?
It is hoped that by the devolution of power and resources to the county level, development and allocation of resources will be done equitably and not rely on the friendliness of a certain region to the powers that be. Hence tribes will not have to fight for the presidency and support their candidates and tribal chiefs despite the limitations and poor standards of leadership they may have. Major appointments by the president will have to be approved by parliament, such as cabinet secretaries, inspector general of the police and ambassadors will have to be approved by parliament. This system of checks and balances will help to ensure that the president will not be able to skew the appointments to favor any region, and by reducing the powers of the presidency, make it less attractive and imperial.
Any presidential hopeful must acquire 50% plus one of the votes, more than 25% of support in over half the counties, as well as declaring a running mate who will be the deputy president, before the elections are held. These provisions are to ensure that the president will be acceptable to a great majority of Kenyans, and promote nationalist politics that can appeal to all Kenyans despite their tribe, race or religion.
Other provisions that will hopefully reduce the tribalism and institutionalize issue based politics are the law on political parties that seeks to ensure that any coalition agreement between political parties must be transparent and reported to the independent electoral and boundaries commission, nationalize political parties (article 91 A), and reduce the party hopping and defections that occur when certain candidates lose nominations.
However, the presidency still retains its allure and power. The national assembly has to consist of legislators of impeccable character otherwise all the vetting and oversight of the executive and state officers will just take on an ethnic bend. Votes can and will be bought in the national assembly to pass the appointments of state officers. Tribalism cannot be legislated out of the hearts and minds of Kenyans, they must be educated, and they must talk to each other and practice non-discrimination when they vote for their leaders in 2012 and beyond.
The constitution must be implemented to the full. Bills and acts of parliament that add muscle to its provisions must be written according to its letter and spirit.
The ghosts of 2008 post election violence must be exorcised. How many culprits of the violence have been brought to book or charged? Very few, if any. low and high level perpetrators have been prosecuted. This kind of impunity is what will encourage these perpetrators to strike again in 2012. The Hague issue is one that will provide a hurdle that must be safely navigated. Reports that the witnesses the Waki commission used to get information were paid by both the PNU and ODM parties do not bode well for the Ocampo prosecution. How true are these allegations? What distresses me the most is that the perpetrators of the violence were much more than six people. The police have shown that they are not interested in investigating these people and bringing justice to the Kenyans who were uprooted, killed and raped after the 2007 general elections. Little wonder then, that a BBC 2009 report showed that kikuyu and kalenjin tribes are arming themselves with g3 and AK 47 rifles in readiness for the 2012 elections. If the police cannot protect them, and charge the culprits of the 2008 violence, they will protect themselves, is what they seem to be saying.
The tjrc hearings that are taking place in parts of the country have exposed deep lying anguish, injustice and disillusionment with the central government on past injustices that were committed and remain unsolved despite compelling evidence and witness testimonies. The assassinations of Tom Mboya, Robert Ouko and Jm Kariuki are some of them. The massacre of Kenyans in Kisumu at Tom Mboya's funeral in 1969, the Wagalla massacre of 1977, the 1992 and 1997 ethnic clashes in parts of rift valley, the 2008 post election violence and the 2008 human rights violations carried out by the military in mount elgon must all be investigated, among other injustices. This is the only way to ensure feelings of hatred, anger and revenge towards any communities perceived wrongly or rightly to be behind such atrocities are reduced.
Politicians such as Eugene Wamalwa have been heard recommending that appointments to the county government posts must favor the people who originate from his county, if such sentiments are shared by other politicians and Kenyans, then the county governments will have tribalism and discrimination based on ethnicity when it comes to employment of people, which is not only unconstitutional but will promote balkanization and tribalism at the county level. The rights of all Kenyans to live and work anywhere they want in the country must not be violated, despite the political wishes of such leaders. This is the only way to promote peace and harmonious existence among Kenyans.
The system of government still is a presidential form, and whether this is the best system of government for Kenya, the jury is still out. The committee of experts had initially drafted a constitution in which the executive power was separated between the president and prime minister but the prevailing attitude among majority of Kenyans was that given the wrangling within the coalition government, this experiment was not tenable as a permanent system. Kenyans of different ethnic groups will still vote for one president in the next general elections. So what will stop the tribal cocoons, alliances and historical ethnic voting patters from recurring??
Kenyans would be advised to vote for presidential candidates that pass the leadership and integrity test, and some of the criteria they should look at I have posted here. Realistically speaking, many Kenyans will continue voting for the leaders from their tribes. The new constitution has laid the groundwork to avoid a repeat of any violence due to this in the next elections. However, the minds and hearts of people who want to see their tribesmen only as the president will take much persuasion to convince otherwise. The new Kenyan leadership will take some time to take root, and the future does look brighter than the past in this respect.