Should Kenya pull out of the Rome Statute that established the International Criminal Court (ICC)? The answer is NO! A very big NO, if the word has different sizes!
It does not matter what the members of the majority in the 11th Parliament say. It does not matter what the majority in the Kenyan Senate say and it does not matter what all of our new cabinet secretaries say.
If we soberly consider the long-term interests of this country and our own chequered history, we should come to the conclusion that, for the time being and probably for the next 50 years, we need the ICC much more than the ICC needs us.
Majorities are always majorities but they are not always right. Some of the worst political decisions that the histories of many countries record have been made or vigorously supported by majorities of one hue or another.
It was the Hutu majority that perpetrated the Rwanda genocide of 1994. It was the Nazi dominance of German politics in the early 1940s that drove the final solution to the Jewish problem, which accounted for the extermination of more than six million European Jews.
We must never fail to carefully interrogate a decision merely because it was made or endorsed by a majority.
An intelligent and experienced warlord can build an effective armed force within no more than two or three years. Reasonably free and fair elections can be achieved in any country after only two or three attempts.
Of the major institutions that collate to form a modern state, the most difficult one to construct is an authoritative and corruption-free judiciary that is roundly respected both within and beyond its own jurisdiction. This is a judiciary in which no one would seriously think of bribing the judge, the prosecutor or the policeman.
Both the majority and the minority in our two houses of Parliament know very well that, even though our judiciary has made tremendous progress over the last few years, it is still a work-in-progress.
Scales of justice
All of our MPs and senators know that our scales of justice do not always swing blindly. They know that there are certain people in this country whom it would be virtually impossible to prosecute effectively within our own borders.
They know that there are certain cases within our courts that have taken over 20 years to hear and determine. And they know that, at the height of the post-election violence of 2008, there was no indigenous judicial mechanism to which the victims or their relatives could turn.
This country needs to be governed, first and foremost, by the rule of law, not the rule of any individual, group of individuals or any single institution.
Even though our Constitution has given our Parliament the power to legislate, there must be certain laws, which even Parliament itself must recognise lie beyond its jurisdiction. Parliament’s power to legislate must be constrained and necessarily limited.
If, for example, any parliamentary majority passes a law abolishing the Ten Commandments, the Christian citizens of this country must certainly consider themselves justified to disregard and disobey such a law.
The main reason why we joined the ICC is because we believed at the time that our internal judicial mechanisms and structures were not strong, deep or widespread enough to deal with all our emerging judicial, security and political problems.
Eight years later, our circumstances in this regard have not substantively changed. We have come a long way, only to realise that we have not arrived.
The main reason why we need to remain in the ICC has very little to do with the on-going cases at that court involving the president and his deputy. They have everything to do with our future national security and the rule of law in this country.
From this perspective, therefore, it does not really matter whether the current charges against these Kenyans at that court ultimately stand or collapse.
Today we might be living at relative peace with each other in most parts of this country. But that is just today. We do not know what might happen tomorrow. A ruthless warlord might spring up overnight determined to exterminate whole segments of our population with the overt or covert support of our armed forces.
What, then, would we do in such a situation? What would the majority in Parliament that now wants us out of the ICC advise us to do to avoid such an eventuality?
The ICC is meant to serve as a deterrent against such eventualities. Whether the cases now going on at The Hague stand or collapse, all of us are watching and, through history, our children, too, will watch.
We now know which red lines we must not even appear to have crossed. In a sense, the ICC is our national life insurance policy, which we scrap at our own peril.
The writer is a lecturer and consultant in Nairobi.
dominicodipo@yahoo.co.uk
