By ABDI HASSAN

On Saturday, according to ICC President Judge Sang Hyun Song, The Hague Court Belgian Judge Christine Van den Wyngaert eased herself from the UhuRuto trial chamber in circumstances that seemed to suggest a conflict of interest between the integrity of the ongoing case and her own convictions and principles.

Two weeks ago, Kenya earned a series of diplomatic thumbs-up endorsements that have far-reaching implications in multiple sectors, dominions and circumstances.

Again, a fortnight ago, President Uhuru Kenyatta opened the 24th Session of the Governing Council of UN-Habitat at the UUN offices in Gigiri, Nairobi. This is the only UN headquarters in the developing world and so the cream of the UN was in attendance.

The President was received by the Executive Director of UN Human Settlements Programme, Dr Joan Clos, Ms Sahle-Work Zewde, the Director General of the UN Office in Nairobi and Mr Albert Nsengiyumva, Rwanda’s Minister of Infrastructure, who is also President of the Governing Council. The atmosphere at the event was cordial.

Hard on the heels of this signal event, UN Secretary General Ban ki-Moon urged countries that will hold their own elections later this year to emulate Kenya.

Speaking on the same occasion, Rwanda Foreign Affairs Minister, Louise Mushikiwabo, who is also the acting president of the UN Security Council, used the forum to criticize the International Criminal Court (ICC), saying it was resorting to “political manipulation” and in the process compromising its own ability to prevent conflicts.

At the same time, the US international relations periodical Foreign Policy quoted new UN guidelines on its website saying: “UN officials may interact without restrictions with persons who are the subject of a summons to appear issued by the ICC”.

Still within the last two weeks, came the endorsements of Kenya’s 11th General Election process and event lodged in the US Congress on Wednesday by three American international election observer groups, IRI, the NDI and the IFE Systems, testified before a congressional panel, commending reforms of institutions, processes and systems Kenya had installed to guarantee a free and fair poll.

In the midst of all these shifting tectonic plates in international affairs, President Kenyatta performed the State Opening of the 11th Parliament. He announced a legislative agenda to tackle corruption; devolution; rights and freedoms; peace; job creation; streamlining government; extending basic services nationwide; and full implementation of the Constitution.

Prefacing this surge in positive diplomatic activity, was the President’s recall two weeks ago of Kenya’s ambassadors and high commissioners around the globe.

Clearly, Kenya’s foreign policy is about to be rebooted for the dynamics of emerging international relations priorities.

Clearly, too, this is a country on the move, purposefully consolidating its institutions of law, domestic peace, diplomacy, democracy and sovereignty and reconstituting personnel that man this nation.

The momentum of the new order which Kenyans have just installed with such infinite reserves of civility, patience, reconciliation and, above all, patriotism, is unstoppable despite the prospect of ICC indictments still seemingly hanging overhead the President and his Deputy.

In fact, the matter at The Hague no longer features as prominently in the national discourse as it did as recently as February. Among the mass of Kenyans who both voted for and against Uhuru and Ruto, as well as the millions of other Kenyans who are not voters, the ICC issue has become something of a nuisance factor, an irritating background noise, the buzzing of the static of an alien jurisdiction. 

Tyranny of judges

One-time US Secretary of State Henry Alfred Kissinger wrote an essay on the ICC, then still in its infancy, in 2001, in his book Does America Need a Foreign Policy? Toward a Diplomacy for the 2lst Century, that was a magisterial analysis of the institution as well as being extraordinarily prescient. The same Foreign Policy magazine brought the contents of this great essay to the attention of the world in its July/August 2001 issue in an excerpt headlined “The Pitfalls of Universal Jurisdiction”. Issuing a dire warning against what he described as “risking judicial tyranny”, Dr Kissinger noted:

“Perhaps the most important issue is the relationship of universal jurisdiction to national reconciliation procedures set up by new democratic governments to deal with their countries’ questionable pasts ...The danger lies in pushing the effort to extremes that risk substituting the tyranny of judges for that of governments; historically, the dictatorship of the virtuous often led to inquisitions and even witch-hunts. Should any group dissatisfied with the reconciliation procedures of, say, South Africa be free to challenge them in their own national courts or those of third countries?”

“It is an important principle that those who commit war crimes or systematically violate human rights be held accountable. But the consolidation of law, domestic peace, and representative government in a nation struggling to come to terms with a brutal past has a claim as well”.

Dr Kissinger’s words, written more than a dozen years ago, read like they were tailor-made for Kenya’s present-day conundrum at The Hague.

He also very strongly recommended the stability and vitality of homegrown democratic institutions. In Kenya’s case, the claim which this elder statesman of global diplomacy says must be respected by the ICC Bench – the consolidation of law, domestic peace, and representative government in a nation struggling to come to terms with a brutal past — and stability and vitality of home-grown democratic institutions, are all factors that give the ICC judges a truly historic opportunity.

They judges of the ICC should seize the opportunity so selflessly and so boldly provided by the people of Kenya in their Decision 2013 General Election, and make a Wisdom of Solomon proportions by terminating the hopelessly flawed and redundant Kenya cases still before them now, rather than later.

The writer is Programme Officer North Eastern Pastoralist Forum, in Garissa.