ICC has no blemish so far, so let rulers stop calling for return of cases home

By Anyang Nyongo

NAIROBI, KENYA: I was not surprised when the African Heads of States and governments assembled in Addis Ababa for the 50th Anniversary of the AU and their normal summit, decided to turn their backs on the International Criminal Court. Or at least to say they intend to do so. And as a first step in this direction, they proposed to bring back the Uhuru/Ruto cases from the Hague back to Nairobi, completely oblivious of how the cases ended there in the first place. The ICC has, as expected, refused to budge, arguing that theirs is a legal and not a political process, hence outside the jurisdiction of the assembled excellencies.

Looked at more objectively, we could not have expected any different pronouncement from these excellencies when they comprise a good coterie of human rights violators against their own people. A good number of them have equally perfected the art of changing the rules of accessing power when it suits them, hence the many “near life presidents” who still sit among them. So to commit a criminal offence against the people and then ask to sit at your own judgment as the judge is no big deal to them.

In which African country have we seen a sitting president go to court as an accused and receive any semblance of a fair trial? In which African country can we expect a president accused of human rights abuses to go to his own courts and allow the due process of law to find him or her guilty? Just by thinking about initiating the process of taking a president to court, trial judge after judge will disqualify themselves fearing not just the president but the enthusiastic and sycophantic handlers of His Excellency. A judge will be as dead as a dodo even before contemplating the beginning of such a trial in most African countries.

 Let us not, therefore, trivialise the Rome Statutes and the opportunity they offer to tame rogue human rights abusers in Africa, including our presidents. More importantly, Africa now has a window of opportunity to establish democracies, which, over time, will be mature enough to protect ordinary Africans against such human rights abusers. This window may, however, get closed if we turn our backs to the promotion and defence of human rights within the Rome Statutes.

At the moment facts speak for themselves in Africa: We have no judiciary that can fairly dispense justice when very powerful people are accused of rights abuse.

 Let us cast our minds back to early 2008, and see on television that matatu on Nairobi-Nakuru road with passengers being pulled out by some rugged militias who proceeded to hack them to death while state security personnel watched. One passenger trying to escape was even crashed to death by the same matatu which rode over him. The same security personnel looked on. Don’t tell me those pictures were not instantly available to our so-called law enforcement agencies; they were abundantly available complete with registration numbers of the vehicles used and the lapel service numbers of the security personnel who watched with glee as the macabre events unfolded. Since then nobody has been apprehended in the Kenyan courts for these wanton killings. And you want to tell me we are now ready to do what we have refused to confront for the last five years?

When some of us shouted “don’t be vague go to the Hague” there was a belief that the Hague would never happen. Now that it has happened time is opportune for us to be vague. Mr Ndege, who lost 11 members of his family in Naivasha, is expected to be content with this vagueness; since he is no big man the loss of his family does not really count, and justice can be delayed in his case until cows come home.

As far as the African heads of states and governments are concerned, cows do not need to come home anyway, because there will be no Mr Ndege to receive them. The likes of Mr Ndege, in the system of justice manufactured by these excellencies, are regarded as menaces appealing for justice from the wrong quarters such as the Hague. Very often such people are quietly eliminated to erase any evidence of injustice or human rights abuse committed by the rich and powerful in Africa. Supposing the heads of states and governments were to be honest and to say that they are ready to give the people of Africa a chance to vote on the decisions made at the AU summit meetings. Suppose the people of Africa, in this rare act of honesty by these excellencies, were to hold a referendum on the requirements of the Rome Statutes versus the proposal that former President Gbagbo of Cote d’Ivoire, for example, should be tried in Abidjan because the leaders say that African problems should be sorted out by Africans themselves. What do you think the result would be? Your guess is as good as mine. But if you ask me I think Professor Gbagbo and the people of Cote d’Ivoire are better off with the judicial process at the Hague rather than anywhere in Africa where a sitting president is very likely to intervene and bias the court one way or the other.

We are very often held hostage by the criminal behavior of our own so-called leaders. Quite often we even rise to defend them after such atrocities because we believe they acted on our behalf, to defend us against our perceived enemies as it were. This, indeed, is how fascism is nurtured; in this regard ethnic fascism, or a black version of apartheid. The trouble is that the very perpetrators of atrocities are those who will stand on mountain tops and claim their innocence, or their willingness to create a healing process without first accepting the magnitude of the disease from which the sufferers are to be weaned.

I guess the Kenyan picture comes out clearly and the malice of bringing the cases home so as to quash them at this late hour is quite obvious. We do not wish to condemn anybody without a fair trial. We need to prove that the ICC is carrying out an unfair trial before any justification can be made for stopping the trials there. Creating a populist argument that Africans should be tried on their own soil makes no sense. It is not where the trial is held that is important, but the quality of trial that is vital with regard to dispensing proper justice. So far the ICC has shown that it is very meticulous in its work.