Quest to frustrate ICC is an abuse to constitutionalism

By Timothy Bosire

I have no personal grudge nor ill-will towards President Uhuru Kenyatta and his deputy William Ruto. I respect them as the two top leaders of our country. I wish them well in their struggle to clear their names in the International Criminal Court (ICC) cases that are just about to begin at The Hague and hope that the Judges and prosecution will ensure neither lies nor fabrication is used against them. 

If there is no evidence against them let them be acquitted at the end of the trial and even be compensated for wrongful prosecution. But if on the contrary, the law should prevail. The Constitution says nobody is above the law! As demonstrated in the living example of Nelson Mandela, people who pursue justice successfully emerge saints. The opportunity for our two leaders is here.

Nobody is pursuing the two. It is possible they were simply caught up in the mix because of the strategic positions they held when the post-election violence (PEV) rocked Kenya in 2008. But they can use this ICC opportunity to help the country know the true culprits. Because today they control the instruments of power including police and Intelligence who can unearth what actually happened.

If it is true, they are innocent as always claimed by themselves and some politicians, why this morbid fear of due process? Due process is ideal in our collective pursuit for good national and international image which is a priority for development. It is a very critical desire!

The latest clamour by a section of the National Assembly and Senate to use Parliament to frustrate the ICC cases is a mockery of the rule of law. Is our Legislature being expediently turned into a tool for the manipulation of justice and due process?

Then every MP or Senator should be allowed to influence Parliament to pass Motions and Bills to frustrate ongoing constitutional criminal proceedings against people they know and we disband the Judiciary and Police Service. Legislators and Executive fat cats pushing this anti-ICC battle are being economical with the truth. They know that it is our own Parliament that took us to the Hague when they rejected a UN brokered offer to start local proceedings into the PEV.

Deliberate refusal by the past government to support international community-sponsored efforts to resolve the PEV matrix put us in the current political and diplomatic mess. The Hague cases are about justice. Others the cases are pursuing justice for include: over 1,300 deceased, the bereaved, the maimed, the internally displaced, the traumatised, those whose property was destroyed or stolen, the scandalised God-fearing Kenyans who have been made to endure the image of a bloodthirsty society, the Kenyan diplomatic elite whose good reputation as acclaimed peace makers took a nose dive for the disaster back home, those arrested and prosecuted maliciously or mistakenly and the orphaned among others.

Making sitting Presidents to answer for crimes is today a universal best practice. The USA did it with President Richard Nixon and impeached him for a criminal offence by his campaign team, and recently Israel prosecuted and jailed a sitting President for a crime he committed while serving as Mayor of Tel Aviv. Why should Kenya be different?

The rule of law is sacrosanct, non-negotiable, and anchors order and harmony in society. It guarantees peace and equity. It tames rogues in society from cannibalising the rest. Kenyans know this. Our legislators should know better, regardless of which side of their bread is buttered. As legislators we serve all Kenyans equally. Nations the world over punish law breakers accordingly. Notorious and extreme offenders meet extreme punishments. Similarly, Kenya must rise up and sacrifice to be able to achieve the level of national harmony and development, so desired.

Britain which bequeathed the rule of law to Kenya had a time in its history when notorious or incorrigible law breakers were branded “outlaws” who were quickly rounded up, prosecuted and banished into the high seas to perish, never to return to Britain, on conviction. Many died at sea. But survivors settled in Australia and New Zealand where they established homes and nations.

Ironically, descendants of these outlaws established dynamic modern countries and instituted the rule of law. Today, Australia and New Zealand operate some of the world’s most modern and respectable criminal Justice systems. Why are descendants of Britain’s worst criminals not keen to uphold their forefathers’ spirit of lawlessness? Why didn’t they establish the world’s only nations without laws? Impunity is never the way to go.

Majority of Kenyans are learned and prayerful. Leader of Majority Aden Dualle who is driving Parliament to legislate to pull Kenya out of Rome Statute represents lawmakers who despite being voted to represent all the people justly, have chosen to speak against pursuit of justice for the victims of the PEV.

The Writer is MP for KItutu Masaba