I implore you Madame Fatou Bensouda, drop these cases

By Donald B Kipkorir

Madame Fatou Bensouda, we – Kenyans and Gambians – have many things in common, and can reach same end, with none the loser. Kenya and Gambia are former British colonies and we are members of the Commonwealth. Our respective legal systems are Anglo-Saxon.

The entire substratum of our criminal system though is aimed at restorative, distributive and retributive justice; the overriding one being restorative justice. By this, it is what the many victims want. It is for this that I appeal to your sense of justice in finding an amicable resolution to the ongoing case against our President and Deputy President, and the now jobless radio journalist.

The International Criminal Court, the Office of the Prosecutor, Messrs. Uhuru Kenyatta, William Ruto and Joshua Sang, the Republic of Kenya and the international community can reach a settlement that is beneficial to all. I want to plead my case. Kenya is a signatory to The Rome Statute. We are a State party and we have domesticated the statute. Our Constitution enjoins on all Kenyans that ratified and domesticated treaties are part of our domestic law.

Our MPs as elected leaders have a mandate to their people. Their exuberance in agitating certain positions including threatening to withdraw from the Rome Statute don’t mean the law as it is, is upended.

Changing our Constitution is no longer a picnic party. So, don’t be worried by legislative excitement. If, as we agree, the overriding principle of criminal justice is restorative, then, this is the only reason I seek your review of your position. In instituting the proceedings, ICC had certain objectives.

Those objectives have not changed, but circumstances on the ground have shifted. ICC was founded on several objectives: justice for all, ending impunity, help end conflicts, remedy deficiencies and incapacities of local courts and ad hoc tribunals and to prevent future war criminals.

In promulgating our new Constitution in August 2010, Kenyans in majority chose this path that the ICC laid. Allow us to make incremental steps to achieve this. The case may jolt the process.

Your case is principally built around the clashes between the Kalenjin and Kikuyu, and as most of the victims were. Truth be told, the two tribes are natural competitors as they have similar economic and political aims. For the first time, Kalenjin and Kikuyu have entered a rapprochement. If the two tribes succeed in their common purpose of building a prosperous and peaceful Kenya, then Kenya can only be a winner, and so are its multilateral and bilateral partners. Give this rapprochement a chance.

You may now have been told Kenya is turning 50. In the Book of Leviticus whose edicts are shared by Christians, Jews and Moslems, the year of Jubilee is special. It is the year for reconciliation and forgiveness of personal transgressions and debts. It is a year of celebrations. If Kenyans, in their wisdom or lack of it, have decided to enter into reconciliation, don’t refuse them. Allow them to make atonement.

On a personal note, there is nothing wrong with you changing course to achieve the same end. Your predecessor, Luis Moreno-Ocampo, wanted to make Kenya an example by the prosecution. You can still make Kenya an example by discontinuing the case and giving us a chance to keep commitments we have made to ICC and the world.

We have given you our word; let it be our bond or rope. Winston Churchill [1874-1965], that British Statesman and doyen of world democracy said that “some men change their party for the sake of their principles; others their principles for the sake of the party.” Be a woman of changing course.

– The writer is an advocate of the High Court of Kenya.