Reflections on Kenya and the Decision by International Criminal Court

The decision by the International Criminal Court to confirm charges against four Kenyan suspects who allegedly masterminded the 2007-8 post-election violence sparked an immediate stir.

As soon as the word broke out, the news was widely circulated via Twitter thanks to the growing Kenyan middle class. 

In this part of the world where the political class is rarely prosecuted such a ruling will inevitably have great consequences. What the outcomes will look like is what remains unclear and has not been discussed as much. Needless to say, many were and remain nervous.

Ideally, the ruling by the Hague should add positive value to Kenya's young democracy. In other words, if justice contributes to some greater injustice then its merits are rendered questionable. Moreover, other states, particularly in Africa, have their eyes cast on this ICC case as a litmus test for the legitimacy of international justice as a whole. This is, in part, what makes the Kenyan case to be both exciting and frightening. 

At the same time, the Kenyan economy is doing relatively well. From my recent visit there, I could tell by the many development projects that are occurring across the country funded by its treasury. The economy suffered severe setback back during the post-election phase; however, it’s now picking-up again. And despite the rising inflation, at least a 5% growth rate is estimated for this year.  Compared to her neighbors in East Africa, Kenya is a more promising story.  The problems lie in her politics.

I am a firm believer in international justice and the need to curb impunity. I have argued on this forum that it is necessary for autocratic leaders engaged in massive violations of human rights to be held accountable. Hence this discussion should not be seen as coming from a member of the privileged African elite--often depicted as being contemptuous of democracy. In fact, it is this desire for a democratic future that inspires me.

It is important, in my view, for society as a whole to consider the merits of legal justice in any situation. In other words, recognizing the difficult debate that exists between justice on one side and peace on the other. I admit that the two are not mutually exclusive. And by "justice", I only mean it in the narrow framework allowed by judicial prosecution. Otherwise, "justice" is a much more complex term.

Here are important questions to ask. What does Kenya stand to gain should the four suspects: Uhuru Kenyatta, Francis Muthaura, William Ruto and Joshua Sang, be put on trial. And what is the related cost? Such a cost-benefit analysis might be necessary for any rational society to survive and achieve progress. Unfortunately, this might mean, as in the case of South Africa that some people are above law.

To be sure, one has to recognize the banality of evil that took place immediately after the elections, leaving more than a thousand people dead and many more injured. Hundreds of thousands of Kenyans were displaced, and continue to live in the most wretched conditions in internally displaced camps. Almost five years later, they are yet to be relocated back to their homes. Any discussion of Justice must make sure that these people resume back to their normal (dignified) lives.

Those who argue in favor of ICC's decision do so mainly out of concern that, if unpunished, the same tribal lords may spark future violence. This is quite convincing, given the strong ethnic loyalty that the suspects command. However, the issue is double -edged. Prosecuting the tribal lords may also further antagonize and radicalize communities. The ICC cannot be totally oblivious of this sad reality that is a consequence of deeply-ingrained identity-based politics.

This week, Kenya's prime minister, Raila Odinga is attending the World Economic Forum in Davos. The mere fact that it is Odinga rather than Mwai Kibaki (Kenya's president) who is invited to such forums indicates that Odinga is the man of the moment, the kind of guy the West would rather work with. And there is nothing wrong with that. Odinga has an impeccable resume. He has spent most of his life campaigning relentlessly for the cause of democracy. This makes him an attractive candidate for Kenya's top job, probably why the West seeks to court him.

The problem is that the ICC decision will be interpreted (by some and likely many) as an extension of Kenya's ethnic-based politics. The extreme end of the conspiracy theories will probably argue that Obama, who has Luo ties through his father, is using the ICC to boost the chances of his "cousin". In fact, it is Odinga himself who has told the media on several occasions that Obama is his relative. None of this makes sense, of course. US Foreign policy is more coherent than this. But such lies if left unfettered  may actually spark further animosity.

The inter-ethnic problems, though many are uncomfortable to admit, are very real. Kenyatta belongs to the largest tribe, Kikuyu and is the son of the father of the nation, Jomo Kenyatta. He is reportedly very wealthy, no doubt because of a huge inheritance. The current president, Kibaki is from the Kikuyu group as well. During the post-independence period, he served in Kenya's first cabinet under Kenyatta senior. A whole system of patrimonial entitlement is deeply entranced. Reversing it will take much more than the ICC can offer.

But Uhuru is more complex of a figure. Despite his vast wealth, he is a man of the people. Or at least, that is the common perception. He has a huge following among the Kenyan youth. In essence, the Kenyan top elites seem to enjoy a special and reciprocal relationship with the poorest of the masses. The middle class, more comfortable dealing with western funded civil societies, has been oblivious to this reality. Another suspect who enjoys this sort of relationship with the poorest in his society is Ruto. This is why the poorest understand the ICC case in very personal terms. Many still believe it is an attack on their communities.

Yet, there must be a way out of this impasse. For those who lost their victims, justice is very important. It is therefore crucial that we listen to what these victims are saying and asking for. 

Interviewed by a local TV station, the victims seemed to have varied opinions. Some of them want their most immediate needs met. They are frustrated that ICC will spend millions of dollars while their lives remain mired in poverty. This is a critique that has been voiced by Rwandan survivor in reference to the exorbitant U.N mandated tribunal, ICTR. It cannot be ignored.

By no means am I advocating that the suspects be left scot-free. However, Luis Ocampo's desire to make the Kenyan case a "lesson" for the rest of Africa might have been too ambitious. Kenya cannot afford another cycle of violence. Justice must be done in a way that will maintain the equilibrium of the fragile society.