ICC not the better option but culture of impunity justifies it

By Wangari Maathai

Former UN Secretary General Kofi Annan and his team of Eminent Persons finally decided to hand over the Waki envelope to the ICC’s Prosecutor Luis Moreno Ocampo. They did so because they gave up on the willingness of Kenyan political leadership to establish a local tribunal and deal with the perpetrators of the post-election violence. Until then they believed, as I do, that a local tribunal would have been the better option. The Hague was the option of the last resort.

Although I have argued for a local tribunal all along, it also became increasingly clear that most Kenyans prefer The Hague. This is because many Kenyans believe that, left to them; the politicians will not arrest and prosecute the perpetrators of the post-election violence because it amounts to arresting and prosecuting themselves.

Kenyans argue that the country has a history of impunity that stretches back to the colonial days. The culture of impunity is so entrenched that perpetrators of serious crimes always escape unpunished.

For example, those who perpetrated tribal clashes in 1991, 1992 and 1997 were never punished and the youth matured to organise and fund the same crimes in 2008. Such criminals escaped punishment because the perpetrators were largely in the Government.

In recent times, even those who are responsible for extrajudicial killings of hundreds of youths, or those associated with Goldenberg and Anglo-Leasing corruption scandals are largely in the Government and have escaped any form of punishment.

As long as the Government is perceived to provide cover for such criminals, the public loses trust that the same Government would arrest and prosecute those who committed the crimes of 2008.

For sure, the Government can arrest and prosecute those small "fishes" who committed murders, rapes, arson and destroyed property. These were largely neighhours who turned on fellow citizens after being incited and funded. Calling them to account for their crimes while letting the "big fishes" off the hook would be gross abuse of justice.

Unfortunately for us, those who incited and funded militia to commit crimes are now Government ministers, Members of Parliament and senior civil servants. Quite obviously, they cannot be expected to arrest and prosecute themselves!

That is why many Kenyans hope that The Hague will and that is the reason Kenyans are opposed to the local tribunal.

Strengthen judicial system

Kenya does not have leadership that can confront its own demons and deal with them fairly and justly. The Government we have is both divided and divisive. As we approach the next General Election, nothing could stop the recurrence of the mayhem between the same communities, who still view each other suspiciously and with much pain, fear and frustration.

If we had the right leadership, a local tribunal would be the best. This is because the entire process of trials, judgments and punishment would help Kenya strengthen the judicial system, affirm that it is not a failed state, rekindle faith in systems of justice and give a chance to the important process of truth, justice and reconciliation. Peaceful co-existence between the different communities will only be realised when justice becomes the defender and fellow citizens realise that crimes against humanity carry penalties, not rewards.

It would have been valuable for Kenya to experience administration of justice in the country so that citizens learn and affirm that they live in a country where law and order are respected and all citizens are subjected to and protected by the same law. Carrying out the process within its jurisdiction will also send a message that the country will not tolerate impunity, especially from its leaders. Also, that it will not need The Hague or the international community every time its leaders commit serious crimes.

There is need to develop confidence in ourselves and our institutions to deal with all crimes within our borders. Only when the country would completely fail and institutions collapse, should Kenyans surrender to international institutions.

Such confidence would also nurture a sense of unity and belonging.

Once we deal with the perpetrators of crimes, the country will have a more conducive environment for truth, healing, reconciliation and restitution.

—The writer is the Founder Green Belt Movement and Nobel Peace Laureate 2004