Uhuruto Took Themselves to The Hague
President Uhuru Kenyatta and his deputy William Ruto should blame themselves for their appearance at the International Criminal Court (ICC) in The Hague, to answer charges of crimes against humanity. According to the ICC, “Uhuru is allegedly criminally responsible as an indirect co-perpetrator pursuant to article 25(3)(a) of the Rome Statute for the crimes against humanity of: murder (article 7(l)(a)); deportation or forcible transfer (article 7(l)(d)); rape (article 7(l)(g)); persecution (articles 7(l)(h)); and other inhumane acts (article 7(l)(k)). Ruto is accused of being criminally responsible as an indirect co-perpetrator pursuant to article 25(3)(a) of the Rome Statute for the crimes against humanity of: murder (article 7(l)(a)); deportation or forcible transfer of population (article 7(l)(d)); and persecution (article 7(l)(h)).”
The genesis of their current predicament was after former President Mwai Kibaki and Prime Minister Raila Odinga had signed a power-sharing agreement on February 28th 2008, under the National Accord and Reconciliation Act. This was a political solution to the bungled presidential election which had resulted in the post election violence (PEV) of 2007-08. Thereafter, the Government of Kenya established The Commission of Inquiry on Post Election Violence (CIPEV) also known as the Waki Commission, to investigate the causes of the PEV. The outcome of this process was the “Waki Report” released on October 15th 2008, which recommended among other things, that a special local tribunal be created to try the alleged PEV perpetrators. The tribunal was to have an international component comprising non-Kenyans within its senior investigations and prosecution staff.
Kibaki, Raila, then-Justice minister Martha Karua and later her successor, the late Mutula Kilonzo, were protagonists of the Local Tribunal Bill. Former Imenti Central MP Gitobu Imanyara and the then Speaker of Parliament Kenneth Marende, also lobbied very hard to have MPs pass the Bill, which had been introduced by Martha Karua. However, in February 2009, MPs rejected it. A second attempt to establish a local tribunal was made by Mutula through the Constitution of Kenya (Amendment) Bill, was similarly rejected in Parliament. Following the release of the Waki Report, William Ruto, who was then-Agricultural minister, suspected his name was among key suspects of the PEV. He therefore did not want to support a local tribunal and opted for a trial at the ICC because he thought its judicial process would take longer. His regrettable words then were: “The ICC will begin hearing the Kenyan case in 2090. Who amongst us will be alive then?” (See newsafrica.net – ‘Kid gloves are off’). Equally, “Kenyatta and a majority of parliamentarians did not seek to shift responsibility for investigations into Kenya’s post-election violence to The Hague because they were prepared to account for their actions. They believed the International Criminal Court would take decades to prepare a case against defendants who allegedly masterminded the violence. In the meantime, they would be able to stay in power. There would never be any awkward court trials in Kenya itself.” (In: ‘Kenya’s difficult road to justice’ – dw.de).
Don’t be vague, go to The Hague
The phrase “Don’t be vague, go to The Hague” was coined by Isaac Ruto (no relation with William Ruto), who was an MP during the Hague debate and is currently a Senator. “The same MPs tried to obfuscate the debate by claiming that they had no confidence in the local judiciary and would prefer that the ICC conduct prosecution of the masterminds of the violence. The phrase ‘Don’t be vague, go to The Hague’ became part of the political lexicon to justify a preference for the ICC. The preference for the ICC was based on the false assumption that international prosecution would take forever and that by the time the ICC came around to issuing indictments, some of the alleged perpetrators would have been safely ensconsed in State House Nairobi. It seems obvious that the political elite had no intention of holding themselves accountable for the violations that occurred during the post-election violence.” (See Omeje and Hepner, 2013 in: ‘Conflict and Peacebuilding in the African Great Lakes Region’ pp.130-131).
Here are sections cited from the Kenya National Assembly Official Record (Hansard) on February 3rd 2009 (pp.45-46), during a debate on the ICC by Mutula Kilonzo, while he was Minister for Nairobi Metropolitan Development: “This is an extremely serious problem and I want to ask that as politicians and leaders, we show leadership to the country. We should rise to the occasion. We understand that our citizens are living in camps for the internally displaced persons (IDPs). This is the time to go and lobby Members of Parliament and Kenyans. Bring everybody here. This gallery ought to be full watching us amending the Constitution so that we tell Kenyans: “Never again will you touch me because of casting my ballot. Never again will you torch a church. Never again are we going to remove a child from the back of a mother and throw it into a burning church because if you do, the Kenyan law will drop on you like a tonne of bricks or shall we say, like a tonne of potatoes which come from the areas where the violence was.” If we allow The Hague to be the one to do so – I want to remind you, if you allow me to do so because I should not – Kenya has been famous as an island of peace which is respected for one thing and one thing only, which is regular elections. Therefore, I want as a country, to respect our sovereignty by acknowledging that we are signatories to the International Criminal Court (ICC) Charter. As signatories, we have also been privileged to contribute a judge there. Let the citizens of other failed states go to The Hague. In Kenya, we will say, you can be vague bcause we will do it in Kenya. The amendment to this Constitution is an attempt by this country to produce light. Between December 2007 and March 2008, there was darkness in Kenya. Blood was flowing on the streets. Even the churches were silent. They did not even know how to pray any more because people were killing each other. Some of them have said that they were encouraging their congregations to participate in the demontrations. It is guaranteed that there will always be disputes arising from elections. The purpose of this amendment is to say that we will not have manipulation of elections and even if it occurs, that it will be settled through organs that respect law and order, are modern and interesting.”
Mutula Kilonzo’s beseechment did not move the MPs and the (in)famous ‘Waki envelope’ was handed to former ICC prosecutor, Luis Moreno Ocampo, by former UN boss Kofi Annan. Fast forward to 2013: Uhuruto’s wish has come true. Let them undergo trials at The Hague and whatever the outcome, we hope that justice will prevail for the PEV victims.