What is your view of the International Criminal Court (ICC)ruling on the case against DP William Ruto and journalist Joshua Sang?
It is a no verdict ‘chameleonic’ judgment. It has no finality closure decision.
Has justice been served?
The accused persons have had a chance to enjoy the benefits of due process of the law in the court despite political propaganda. To the victims, it was triple victimhood. They suffered irreparable scars, government abandoned their quest for justice and the ICC seems helpless for the time being.
Would you say political threats to pull Kenya out of the Rome Statutes could have contributed to the ruling?
Threats of ‘pulling out of ICC’ were hot air. They were part of the broader political strategy of intimidating and manipulating the court to surrender as well as shielding perpetrators from accountability.
At what point did the ICC case collapse?
The cases did not collapse. The environment and conduction of investigations and prosecution were extremely hostile. Witnesses became casualties. The judges’ final decision reflects this fact: witness interference and intolerable political meddling.
What is your assessment of Luis Moreno-Ocampo, the previous prosecutor at ICC?
He followed the laid-down process of investigations and prosecution. If there was no evidence, case judges would not have allowed investigations and trial verdict. They would not have been satisfied with the evidentiary threshold required and allowed the case to proceed to trial. He had his weaknesses, but the judges relied on law and evidence.
What are the political implications of this ruling?
Kenyan politics are not determined by a single event. They are very dicey, individualistic and fluid. It will be a veneer of illusion to depend on this decision to make near-future political predictions. The Jubilee coalition was cobbled together, not necessarily for ICC cases, but other hidden interests. ICC only contributed to the hastening of the cobbling together of the coalition. Beyond that, original interests prevail.
Do you believe the post-election violence was planned?
The Waki Commission and various evidences indicate both spontaneous and planned violence. It is necessary to observe that the theory of command responsibility indicates that there can be no formal policy, but the key persons are fully aware of events happening without taking action to stop. Jean Pierre Bemba’s ICC decision demonstrates this fact.
You have had close interaction with some of the victims. Have they healed?
Artificial healing, yes. There is political healing among the political elite at the top who shared political spoils as it always happens. However, to the majority of the victims, genuine healing encompasses truth, justice, reparations and guarantee of non-repetition. I doubt this has been achieved. Victims have suffered triple victimhood.
Talking about compensation of the victims, what in your opinion should be the minimum reparation for those who lost relatives and property?
It is hard to quantify loss of loved ones and lost opportunities. It is not fair to reduce suffering of a survivor or victim to monetary value. All what survivors have obtained is not compensation. It is humanitarian assistance. There is legal requirements for reparations and compensation which should guide the process.
The 2017 poll is around the corner. Do you think this verdict will affect how politics and elections are conducted next year?
Yes, to the extent that ICC has been scaring politicians in spite of the false bravado you see around. So, they will think twice. However, without solidly addressing the prevailing systemic culture of impunity, the perpetrators of atrocious crimes are emboldened. Local criminal justice remains weak and vulnerable despite some reforms. ICC will need to closely monitor the situation. The Kenyan cases are not closed yet.
What does the ICC case say about our police service?
ICC cases were serious indictment on the Kenyan criminal justice and investigatory capabilities. The national agencies were expected to address the impunity gap left by ICC by investigating the secondary suspects (middle and lower), the majority who are the real culprits who committed the actual burning, killings, raping, etc. This has not happened. This confirms the Waki Commission report on the failures of the police and interference of their work. The situation has not significantly changed. Major reforms provided in the Constitution have been thwarted.
What, in your assessment, needs to be done to avoid a repeat of 2007?
We have to implement the Constitution faithfully in order to fix structural, operational and funding problems of the institutions of governance such as the Independent Electoral and Boundaries Commission (IEBC), police, Judiciary, provincial administration and the civil service. These institutions are still highly controlled and susceptible to executive interference and manipulation.
What warning signs should we look out for?
Low acceptance and legitimacy of crucial institutions like the police, Judiciary and IEBC by more than half of the country; high level of social and political divisions; political fragmentations along ethnic lines; breakdown of the rule of law caused by Executive and Legislature; increased high-level corruption and amassing of wealth for campaign financing; as well as the re-emergence of militia-like groups.
Our politics and way of life to a larger extent is saturated by a culture of violence. Why?
This is because of a serious deficit of accountability. Perpetrators of crimes, especially the top political and socially influential figures, are never prosecuted. This emboldens criminality. An example is the failure to prosecute both the primary and secondary perpetrators of the post-election violence. There is no incentive to deter offenders from repeating such crime. Just look at the cases of corruption. Impunity clearly prevails.