It’s too late to wish Ocampo away; let’s fix the system
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By ANYANG NYONG’O I have read in the Daily Nation yesterday, an article by Thuita Mwangi, the Permanent Secretary in the Ministry of Foreign Affairs, arguing that it is premature for Luis Moreno-Ocampo to come to Kenya on a mission to start the process of dealing with post-election violence perpetrators through the International Criminal Court (ICC). Mwangi argues that by allowing the ICC to get engaged in prosecuting the post-election violence perpetrators Kenya is compromising her sovereignty to an outside body. He continues to assert that Africa needs to have "homegrown solutions" to her problems; this is not the time to deprive Kenya of the opportunity to deal with this issue her own way. Both arguments are misguided, fallacious and somehow escapist. When Kenya became signatory to the Rome Convention she did so as a sovereign state. If anything, that was the point when the so-called sovereignty was compromised; and Mwangi was there to approve the deed. Further, allowing the ICC to get involved in our domestic politics was at our invitation when people in political power stole elections, plunged the country into crisis and more or less invited popular rebellion against that very unpopular and unjust abuse of the people’s sovereignty. It is not really Kenya which is sovereign as a state; it is the people who are sovereign and express this sovereignty through democratic choice of government that can exercise State power legitimately. When this legitimacy is thrown to the winds by abusing the right of the people to elect their own government, then the people have a right to deprive the governors of political power and vest in a body that will respect the people’s sovereignty. Don’t be vague The people could have done this through a revolution when the democratic process was sabotaged. Wise counsel, however, prevailed and a ceasefire was arrived at and the National Accord signed. The Accord created an interregnum during which crucial reforms must be undertaken under supervision of the international community, including ICC. Let Mwangi not forget the importance of this interregnum; it recognises possible abuse of the principle of sovereignty by the authoritarian presidential system which can easily subvert justice and plunge this country once more into political chaos. When Parliament and the people of Kenya cried, "Don’t be vague, go to The Hague" it is this propensity to subvert the course of justice by the local judicial process, dominated by the Executive branch of Government, that they feared. That fear has not ebbed one iota. Mwangi, of course, would not share in this fear knowing full well that he speaks from the pedestal of Executive power. The legal apologetics Mwangi advances do not impress, either by their logic or content. A Special Tribunal does not in any way contradict the possibility of local courts being able to try post-election offenders legally; it simply confirms that these courts, as used at the present conjuncture, would not ensure justice is done and is seen to be done. If Sudanese courts can perform better than us then there is no need why recommendations regarding what to do over Darfur should be the same as those related to Kenya’s case. When Waki forwarded the names of the perpetrators of the violence to Annan, he did not do so by fiat. We ourselves had given him the mandate to do so by the manner in which that commission was set up by us, legally. We accepted the report and committed ourselves to implement it. As usual, as soon as the hour of reckoning arrives, we now seem to be beating an about-turn; the usual game of protecting impunity by its very beneficiaries that Kenyans have known since Independence! This opportunity presents Kenya with the challenge of strengthening her judicial system and showing the world we can run a just, fair and democratic polity, free from abuses of impunity and other forms of injustice. But you don’t strengthen a rotten system; you radically change it and create a system that can work in consonance with the goals of social justice and human rights. Anybody in their right mind knows our system is rotten and in need of radical change. The NARC Government tried a radical surgery of the Judiciary which came a cropper. This time we need to do so with some seriousness, making sure impunity does not rear its ugly head again. Rather than castigate Moreno-Ocampo, we should welcome him as "a friend of the court", here to help us find solutions rather than compete with us in doing the obvious: dealing with impunity and ensure justice is done to all those who messed with human and people’s rights in Kenya during and soon after the last General Election. The writer is Secretary General, Orange Democratic Movement (ODM).