First. According to the Rome Statutes that establishes the International Criminial Court (ICC), in Kenya famously referred to as The Hague, the framework is meant to take charge where the rule of law has failed or the state is unwilling to take action as a governance supporting mechanism.
As such, does Kenya in the strictness of the sense, a failed state warrantying the hoped for attention and urgency by some Kenyans? What with Kenyan education and judiciary producing one of the ICC judges? Most of the legal counsels at the Rwanda and a Sierra Leone prosecutions? Being chosen to provide custody for the Arusha Tribunal proceedings?
Second. On a more global level; Were the Rome Statutes meant to be the global cutodians of law and order or a prod to ensure that various actors are threatened enough to demonstrate effort of enhancing true law and order?
Am persuaded that the latter is the real reason for the establishment of the said statutes.
In that case then, No Kenyan is being taken to the Hague!
Why? The Grand Coalition, the Principals, Parliament and even the Civil Society are all 'really' making efforts to address the cause of the Post Election Violence and have the culprits punished, embarrased, contained and dettered!!! What with the reconciliation efforts, the Interim Independent Electoral Commission? Truth Justice and Reconcilliation Commission, The National Land Policy, The National Intergration and Cohesion Commission, the debate in the police, new parliamentary standing orders and a Committee of Experts on the new constitution with its road map to boot! The civic education processes and initiatives? The various joint peace meetings in the frontier zones? Rudi Nyumbani? The picking up economy and development agenda!
Third. Considering the so far already indicted criminals by ICC sill at large, how much priority can the Kenyan case hold over the others. Why would and should it be given priority over the cases that have been pending arrest and or prosecution over the 5 or more years? Will the capacity of ICC tremendously be increased just to speed up the Kenyan process? Will the other cases be ignored by duration and severity just to appease the Kenyan wish for a speedy process?
Forth. The difference between murder, manslaughter and a crime of passion is always determined by the motive, intention and circumstances. Will both Raila and Kibaki, their win or lose not be the main cause of the atrocities and as such make them the prime movers of the post-election violence and therefore truly the first suspects? Is the ICC prepared and willing to take this route with all the scary possibilities it potends? i.e. Will the Hague really go beyond where the local tribunal will dare tread?
Finally. Who is funding the ICC? How much business are they doing with the Kenyan nation? Could speedy action upset this apple cart, taking into cognisance the exhibited potential of the Kenyan business potential considerinmg the opening up of South Sudan, Ethiopia and possible management of Somalia put side by side with the global economic recession that is heavily being felt elsewhere?
Verdict:
The Hague, in the Kenyan case, is a scarecrow that done its duty. It is Sudan, Iran and Eriterea that have not felt it. The Hague is an illusion that we, Kenyans, must now cease to pursue as it is now superflous or at best an illusion; the only remaining thing is to expose how useless it is NOW in the creation and realisation of the Kenyan nation if the scare, its principal role, fails to jolt us to seek logical solutions our nationhood needs.
ndolo asasa Esq
