History teaches us that we do not learn from history. Kenyan courts, according to President Uhuru Kenyatta, are suddenly sufficient to handle all matters Kenyan. Their sufficiency and capacity to dispense swift justice is such that he found need to vow that no Kenyan would ever face any foreign court again. Such was the extent of anguish and mental torture from his handful appearances at the ICC; he has petitioned Parliament to take the necessary steps to end all ties with The Hague-based court.
Kenya ratified the Rome Statute, the ICC’s founding treaty in 2005, giving The Hague court complementary jurisdiction for crimes against humanity committed in Kenya.
It is intended to complement existing national judicial systems and may only exercise its jurisdiction when certain conditions are met, such as when national courts are unwilling or unable to prosecute criminals or when the United Nations Security Council or individual states refer investigations to the court.
Lest we forget, Kenya was given a chance to form a tribunal to deal with the 2008 post-election violence but failed to do so. The Waki commission did recommend establishment of a special tribunal of international and Kenyan judges to investigate and prosecute those most responsible for the violence. Some of the most vociferous proponents of the ICC then included the President and his Deputy. Our National Assembly, which represents all Kenyans, voted against a constitutional amendment bill that would have seen the establishment of the proposed local tribunal.
The President and his Deputy’s preference for the ICC then was not misguided. It was clear to them at the time that a local process spearheaded by our Judiciary could simply not be trusted with a task of such magnitude. And yet we have come full circle. The very people who once so clearly perceived the shortcomings of our courts are now extolling their virtues. What has changed?
Our courts are like fish swimming in a bowl, year after year running over the same old ground. You get the impression of a lot of activity and movement but in the end we find them still plagued by the same old predicaments; Poor infrastructure, shortage of judicial officers, backlog of cases and corruption.
Prior to an announcement as bold as the President’s “never again” calls should we not first see efforts at growing capacity in our Judiciary and supplying the tools it needs to properly execute its mandate?
One would expect for instance that our leadership would work to first raise the local standards to match facilities at The Hague-based court; from video links and teleconferencing technology when judges back home still have to physically record court proceedings. The High Court in of Eldoret is housed in a building the government has condemned. The new Land Court there can only hold ten people. Yet MPs have slashed the Judiciary’s budget at every opportunity to “teach lessons”. They have proposed amendments to the law that would diminish the independence of the Judiciary, and the President himself has led the way in trashing orders made by our courts. Yet we are expected to believe that in addition to our petty squabbles over chicken, our courts now have capacity to adjudicate international crimes as well. The cognitive dissonance is astounding to say the least.
The same crisis of confidence that led to an avoidance of the courts in 2008 still plagues the Judiciary. While constantly looking back prevents forward progression, one cannot help but get a feeling of déjà vu.