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State must apologise to election violence victims

By Kamotho Waiganjo | April 17th 2016

The withdrawal of the case against the last two Kenyans marks the end of a process that was doomed from the start. With Prosecutor Moreno Ocampo failing to properly and fully investigate the cases, and instead trying them in the media, relying on rumour and hearsay, by the ICC failing to protect its evidence and its witnesses despite all its tremendous resources, the ICC lowered its credibility and opened the door for justifiable attacks about its motives. The withdrawal, however, provides a critical moment for reflection, even as we attend thanksgiving services.

For the avoidance of doubt, I am personally glad the cases are over. They had become a farce and were never going to solve Kenya’s profound problems that showed their ugly face in 2008. The focus away from the court cases and our frustration with the ICC must however lead us to reflect on some realities about that 2008 events that may assist us in the difficult journey of nation building. First, the ICC. We must accept that this continent needs a strong and effective ICC. I do not join those who celebrate the humiliation of the court by the Kenyan cases.

In my view, the “ICC must go” refrain is hypocritical, dangerous and irresponsible. Hypocritical because the majority of African cases before the ICC were referred by African states. Irresponsible because this continent has the most prevalent cases of human rights abuses by leaders either directly or through proxies on their own citizens. As a continent we wallow in impunity extremis, which explains why there hasn’t been any significant conviction from the 2008 crimes. A weak ICC may be good for the leaders of Africa but it will be bad news for its citizens. What the Kenyan cases have showed is not that leaders should not be tried, but that they should be tried on the basis of evidence with sufficient safeguards to ensure that their trials are credible.

Secondly, let us accept that 2008 happened and no amount of burying our heads in the sand will undo that fact. The wounds of 2008 may not be evident to most of us but they exist. Some people will carry them to their grave. Even as we celebrate, let us not dishonour their pain.

What makes these wounds worse is that there has never been acknowledgement by the perpetrators of the crimes committed in 2008. While we all accept that 2008 happened, while we all accept that victims exist, we all act as if there were no perpetrators. Everyone pleads innocence as if the crimes committed themselves! Good people, the reality is that Kalenjin folk were butchered in Nairobi slums and in Nakuru County. Kikuyus were raped, maimed killed and ejected from their homes in the Rift Valley and elsewhere.

And Hon Raila Odinga, there is no such thing as “only 200” died in Kericho! Luos were raped maimed and killed and their houses torched in the Nairobi slums. Kisiis were killed, raped and maimed especially in Kisumu and parts of Rift Valley. I could go on and on. We must remember that the rallying call for these massacres came from political leaders who have since “moved on”.

These leaders may express and celebrate all the political love they have for each other but they owe it to this country to acknowledge that they rallied us to do wrong to one another; even as we negotiate the why and agree to never again.

Even those of us who may not have taken a machete in our hands carried one in our hearts. We all spewed hate and some of us funded the mayhem. There are no innocents. Why can’t we as a nation just acknowledge that we wronged each other and make a serious apology even as we celebrate and seek to build a nation together? There can be no healing that does not acknowledge hurt. The British have just erected an apology memorial at Uhuru Park to acknowledge that they injured us. Why can’t we do the same? I suggest to us that while the new institutions under the Constitution provide the hardware of nation building, there can be little movement unless the software, including this overdue national apology, is activated effectively.

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