What you need to know:
- Can the ICC still be said to be safeguarding the political rights of Kenyans, their freedom and democracy, when the cases threaten to consume the time and effort that Kenyans have tasked the principals with to improve the lives of Kenyans?
My recent communication to the UN Security Council requesting the cessation of weak cases against Kenyan officials by the International Criminal Court has caused considerable public commentary.
What has been missing in the commentary is an understanding of the issue from the perspective of the Kenyan State. I was not making a defence of the ICC indictees, but instead was representing the interests of the State I serve.
In the free and fair democratic elections of March of this year, the President and the Deputy President – were entrusted with executing the will of 40 million Kenyans.
In pursuit of the Kenyan people’s domestic and international interests, State officials under the direction of the principals deal with multiple institutions whose work affects the ICC, and in which the Kenyan state is an active member.
When matters of the ICC arise, are those officials to pull back from vigorously pursuing their responsibilities because there is a perception that they represent only the principals’ personal interest?
Certainly not. The State is not on trial at the ICC despite the Prosecutor’s continuous use of a media bullhorn to try and erase the important distinction between the indictees and State institutions.
The state has an obligation to ensure that it operates from the strongest possible position, defending itself from foreign intimidation and manipulation, from attacks on its credibility and prestige, as well as any attempts to curtail its full participation in the community of nations.
If, as is the case this month, the UN Security Council has a debate on the functioning of international tribunals and courts, Kenya must participate on the same footing as others and advance the nation’s interest without self-censure.
My critique of the ICC prosecution is legitimate, And the fact is that my observations of the prosecutions are not frivolous. There is overwhelming evidence that the cases are frail.
The prosecution has suffered repeated censure from the ICC judges. It has even, by its own admission, used witnesses who are on record as confirming they were coached to lie.
With increasing frequency, witnesses are dropping out and the prosecution’s only response is to make unsubstantiated public attacks on the integrity of the accused. These irregularities should give pause to anyone concerned with due process.
That the prosecution has continued to pursue the cases despite their evident weakness only gives credence to suspicions, both in Kenya and abroad, that the prosecution is using the cases in questionable faith to sustain the relevance of a failing institution.
It is a matter of dismal record that the prosecution has only managed one conviction in a decade, at a cost of hundreds of millions of dollars.
That all its indictees have been Africans, at a time when there have been multiple conflicts outside Africa leading to hundreds of thousands of civilian deaths at the hands of repressive and oppressive state actors, indicates strongly that the prosecution lacks true legitimacy in the international community.
The gap between its duty and its performance widens when we note that Kenyans made a sovereign electoral choice incompatible with the continuation of prosecutions that are purported to benefit them.
Can the ICC still be said to be safeguarding the political rights of Kenyans, their freedom and democracy, when the cases threaten to consume the time and effort that Kenyans have tasked the principals with to improve the lives of Kenyans?
This is not to attack the ideals and the aspirations of the ICC, but certainly the project as currently undertaken is not working and will not work without a concerted effort by the international community to revisit its fundamentals.
In the meantime, the main purposes of the ICC seem to be to advance the career interests of a handful of jurists and academics, and to enrich international law jurisprudence. I can see no reason to sacrifice the interests of Kenyans to such vain ends.
Finally, it should never be forgotten that the death of 1133 Kenyan and displacement of 650,000 others remains a deep wound on the Kenyan psyche. Kenyans fear nothing more than a repeat of the 2008 events, and the 2013 elections, peaceful, restrained, free, fair and universally acclaimed bear testament to that fact.
Mr Kamau is Ambassador Extraordinary and Plenipotentiary, Kenya’s Mission to the United Nations, New York.