Ocampo’s authority seeking tour was ICC’s first shot

By Anthony Kuria

International Chief prosecutor (ICC) Chief Prosecutor Luis Moreno-Ocampo’s request to commence investigations into last year’s violence is a clear message to violators that they will not enjoy immunity for their actions.

The Prosecutor will hopefully push Kenyan authorities to seek justice for victims by prosecuting those who have made ethnic violence an unavoidable habit of Kenyan life. Yet, many Kenyans are strongly opposed to any attempts to institute effective national proceedings fearing that a local process will be hijacked.

But the ICC is not a tool to supplant Kenyan courts. Kenya has the first and primary role to exercise its criminal jurisdiction over these violations and the ICC is a court of last resort.

After all, the first and best option for justice is for a country to try its own unless the criminal justice system has collapsed or is in the hands of criminals.

The ICC drafters never dreamt of a system that would in time become irrelevant for failing to act promptly and Kenya is called upon not to allow perpetrators to operate with impunity. Kenya must avoid the dubious and distasteful company of nations that reward violence and shield violators from prosecution.

Designs on power

However, some senior politicians are blinded by a Messianic belief of self-righteousness that we are an honourable country that does not need prodding to do the right thing.

Considering last year’s trauma, we face a frightening national order based more on the rule of force than the rule of law. There must be consequences for the violence as reliance on shaming and pressure tactics are not enough. Previous suspects of political violence have only received adverse mentions confined to the periphery of legal theory and moral rhetoric.

But the ICC has serious limitations and Kenyans must temper their expectations.

Its function is dependent on effective and rapid co-operation of Kenyan authorities. Without its own police, the ICC will rely on Kenya Police to effect arrest warrants and serve summons on witnesses.

Kenya’s violence was not committed by one side only and the ICC can only prosecute a handful of suspects chosen for the symbolism of their crimes.

This is woefully inadequate to end Kenya’s cycles of savage retributive ethnic violence or even fulfil ICC’s promise to mete out impartial justice.

Kenya’s fate is therefore in its own hands as the ICC cannot exercise its jurisdiction if alleged crimes are investigated or prosecuted in good faith within our national legal system.

Additionally, Kenya could contest before the Pre-Trial Chamber the appropriateness and legal foundation of the Prosecutor’s request to open an inquiry or his finding that there is reasonable basis to probe the post election violence.

This safeguard was enacted in the Rome Statute to eliminate the legitimate worry of countries not wishing to authorise a single person to initiate an inquiry without supervision.

If the ICC takes up Kenya’s case, politicians with dynastic designs on power will be watching closely. While Ocampo’s action is positive, it comes with risks and already rumblings of discontent from some sections of society are rife.

If the ICC intervention serves to make the situation worse, the court will get the blame, but if it succeeds, not only will Kenya reap immediate political rewards, but this will be a legacy of far-reaching dimensions for Kenya and for the ICC’s credibility.

—The writer is with Movement for Political Accountability

 

 

Read all about: ICC Chief Prosecutor Luis Moreno-Ocampo local tribunal Kenya Police

 

 

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