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ICC should keep its eyes fixed on Kenya

COMMENTARY
By Ndung’u Wainaina | February 26th 2021

Kenya is still a State Party to the Rome Statute of the International Criminal Court (ICC). In addition, it is important to observe that ICC still has an interest in Kenya.  Although its cases were vacated, they have never been closed.

ICC referred Kenya to State Parties for non-cooperation and the matter has never been resolved. There is an active case at the ICC over alleged witness interference. This has kept Kenya on tenterhooks.

But despite that, as we head to the 2022 General Election, there are ominous signs on the horizon. Already, political temperatures are on the rise and some leaders have been accused of making utterances that amount to hate speech. Intolerance is slowly rearing its ugly head. As a result, some people have predicted doom -- that 2022 might turn out to be another 2007.

That must not be allowed to happen. No one is immune from prosecution. Politicians, State agencies, from police and all the way to the presidency, and even ordinary citizens are all subject to prosecution if they commit crimes that fall under the jurisdiction of ICC. Nobody is above the law.

No politician should fuel and support ethnic mobilisation. There should be no use of inflammatory rhetoric during the campaigns which can worsen growing ethnic tensions. Political leaders are not only obliged to ensure that the political processes take place in a transparent and peaceful manner, but are also responsible for preventing and discouraging their supporters from resorting to any form of violence.

Human rights law does not only prohibit use of lethal force, but it also advises that it be used as a last resort in case of imminent danger. The Inspector General of National Police Service should stand warned on continuous use of lethal force, intimidation and harassment against peaceful Kenyans. This is unacceptable and must stop. Every Kenyan has a right to peaceful assembly. It is a constitutional right, not a State privilege.

ICC has to send a clear warning to politicians and the State against ethnic mobilisation and stoking of political violence. The ICC prosecutor must maintain utmost vigilance to ensure that political processes do not lead to acts of violence or attacks against civilians.

The prosecutor must pay particular attention to any reports of incitement, physical violence or even State-instigated violence. The prosecutor must warn anyone who commits, orders, incites, encourages or contributes in any other way to the commission of Rome Statute crimes, that they are liable to prosecution by the ICC.

The international community is coming from terrible experience with former US President Donald Trump. To this end, it must unequivocally and strongly speak out and take concrete actions against the State and individuals who might imperil peace by subverting the Constitution and the rule of law.

The eyes of the victims of past crimes are fixed firmly upon ICC. They were denied justice and worse, absence of justice might have emboldened their persecutors. We cannot falter again. The goal of the ICC is to prevent and end the culture of impunity. Kenya is not yet out of the woods.

Gravest of crimes

Where credible allegations of such crimes are made, it is up to those who do not see the need for international justice to make their case and demonstrate that their own evidence-based response is adequate. The ICC itself is founded on the principle that the gravest of crimes “threaten the peace, security and well-being of the world”. It is time it rises to the challenge and sends a strong message that it is prepared to protect civilians by deterring even the most determined of despots.

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The crux of the ICC role lies in enforcing and inducing compliance with specific norms of international law aimed at preventing mass violence. The ICC contributes to the fight against impunity and establishment of the rule of law by ensuring that the most severe crimes do not go unpunished.

The ICC deters would-be violators. Where tensions arise, announcing publicly that the ICC is watching the situation is a powerful way to warn any potential perpetrators that they could be held liable for their actions.

Without the rule of law, impunity reigns. Subverting constitution, democracy, and the rule of law pose serious danger to the peace and stability of a country. Therefore, proactive deterrence and accountability is important not only for the sake of the past, but for the future as well.

Where impunity is left unaddressed, it provides fertile ground for the recurrence of conflicts.

Mr Wainaina is executive director, International Centre for Policy and Conflict. @NdunguWainaina

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