The irony of Kenyan cases at The Hague

“Isn’t it ironic. Like rain on your wedding day. The good advice that you just didn’t take.” Alanis Morissette.

Isn’t it ironic? The then President and Prime Minister handed over the Waki List to the Panel of Eminent Persons with instructions to forward it to the ICC prosecutor.

Today, the ICC, the pre-trial and trial judges, and the prosecutor, just doing their jobs of fighting impunity in Kenya on behalf of the international community, are now demonised.

Isn’t it ironic? That one of the ICC judges in two dissenting opinions, the first issued on March 31, 2010, the second on January 23, 2012, specifically stated that the charges against President Uhuru Kenyatta did not meet the threshold of crimes against humanity and that the ICC was not the right forum for their investigation or trial?

Isn’t it ironic? The good advice that Parliament didn’t take. To constitute a local tribunal to investigate the perpetrators of post-election violence.

One day, the Hansard shows Parliament asking for the Waki List to be taken to The Hague. On another occasion, the Hansard reflects the same Parliament condemning the court at The Hague for undermining Kenya’s sovereignty.

Isn’t it ironic? That the ridicule ICC now faces, and the difficult position of the victims, was foreseen and ICC forewarned. Not by an outsider.

In the first dissenting opinion, the judge stated that the prosecutor should not be allowed to start investigations in Kenya.

In his second dissenting opinion, he warned against putting the President on trial based on incomplete investigations when it could not be established with certainty that he bore individual criminal responsibility.

Isn’t it ironic? Almost three years later, true to the prediction of the judge, the charges against the President were withdrawn because the prosecutor did not have sufficient evidence that would discharge the presumption of the innocence of the President in the charges against him.

Isn’t it ironic? That he stood alone. Against the majority. And that it his predictions that eventually came true.

It is he, not the majority, who stated in his dissenting opinion that the collapse of the case would have serious consequences, not only on the ICC, but on the victims.

Isn’t it ironic? The Roman governor, it is said in the Bible, at every Passover festival, set free one prisoner that the public chose.

On one particular Passover festival, he asked the public to choose between a notorious criminal, Barrabas, and Jesus Christ the Messiah.

Pontius Pilate crucified an innocent man, and let the criminal go free. Because the public, the majority, demanded it.

Isn’t it ironic? Those celebrating the withdrawal of the President’s charges, and those condemning it, are divided not by ideology or justice, but by ethnicity.

Those celebrating, mock the court; those in mourning, believe the President should have been crucified and paid for the sins of the many to appease the pain and loss of the victims.

Isn’t it ironic? Otieno Mac’Onyango is waiting for the Government to pay him more than Sh20 million he was awarded by the High Court for being detained without trial in the late 1980s. And he is one of many with judgments yet to be paid.

The Government that is yet to pay these judgement debts is about to introduce a law authorising detention without trial, in the guise of fighting terrorism. A law that is a mockery of the Constitution so hard fought for.

Isn’t it ironic? The Mau Mau, once considered terrorists by one government, are now considered victims of a brutal regime acting on the power of unjust laws. They are yet to be fully compensated.

Every day, the list of victims of unjust government actions grows longer.