International Criminal Court is not for the three, our conscience is on trial

By Ababu Namwamba

Jubilee or CORD. Kalenjin or Duruma. Victim or accused. Whatever your political affiliation, ethnic extraction, sentiment or emotion. If you are Kenyan, and you have any semblance of a conscience... you cannot help but feel a searing sense of national shame.

The image of the Deputy President of the Republic taking a plea on the worst crimes known in criminal jurisprudence; the prospect of the Commander-in-Chief of our Defence Forces in the dock in a faraway land; the hunted demeanor of our journalist fighting terrifying charges in the blinding glare of global media.

The spectacle of Members of Parliament in panic-mode scampering all over in a shambolic bid to torpedo the Rome Statute. Scenes of elected leaders, flag in hand mumbling words of our national anthem on the cold streets of a foreign jurisdiction. It matters little whether you are pro or anti-ICC. This whole show shames us all. It is a damning unraveling of everything we have got wrong for fifty years... curiously unfolding in Kenya’s year of jubilee! It is a severe trial of fifty years of our puerile stone-age tribal bigotry. For fifty years we have celebrated the tribe above all else. Tribe over country.

Tribe over justice. Tribe over merit. For fifty years we have stolen, raped, pillaged and perverted the course of justice...then taken refuge in the tribe.

For fifty years we have paid lip service to nationhood while carving ethnic fiefdoms and elevating tinpots to tribal dons... to protect “our own” in the harsh jungle that is the Kenyan State.

Little wonder that even ICC prosecutor Fatou Bensounda has built her case along the natural Kenyan fault-lines of tribe against tribe. It is a fatal condemnation of fifty years of horrific impunity and disdain for the rule of law. For fifty years, we have entrenched the belief that impunity pays much better than fidelity to the rule of law.  This belief is the stream that nourishes the serpent of impunity, which has squeezed us dry of any sense of what is fair, just and right; sucked us empty of our ability to be shocked, awed or ashamed; shortened our memory to warthog levels; and dulled our capacity for moral outrage. When some skunkhead of a driver smashes dozens of school children to smithereens, we shake our heads in fleeting horror, and then life goes on.

Do we even remember the price of the 2007-8 pogroms, subject of the ICC drama? Well, just 1,133 dead, 3,561 injured, 663,921 displaced...only! And, oh yes, the little risk of the country almost going banana. Who wants reminding that ethnic xenophobia has disturbed Kenya’s soul every electoral cycle since the return of political pluralism in 1991? Innocent lives and property were wasted in 1992, we did nothing.  And in 1997, no finger lifted.

Then the 2008 implosion, but who cares! Den Haag typifies a stinging indictment of fifty years of systematic collapse of our state institutions.  For decades, we compromised the sanctity of our judicial edifice, clogging the corridors of justice with the filth of graft and incompetence, reducing justice to a commodity pawned to the highest bidder.

This made the choice of ICC or local tribunal a toss of “the untrusted known or the trusted unknown”...Vague vs Hague! We have now evolved this chilling hyper suspicion of any judicial decision at variance with our expectation.

The trials are a deserved sharp rebuke of our leadership, a tacit confirmation that we are a nation afflicted by a chronic trust deficit. No one trusts anyone.  We could not even trust ourselves with the fabled Waki envelope.

Every cycle of national leadership since independence has failed to dry the streams of tribal animosity, forge national trust or exorcise the demons of impunity.  While Julius Nyerere was fostering a strong sense of nationalism across the diverse ethnicities of Tanzania, Jomo Kenyatta was sowing seeds of toxic tribal jingoism.  As Ghana makes admirable progress in burying a legacy of coups and entrenching a culture of credible democratic practice, we seem determined to regress.

No, it is not just three Kenyans on trial in a faraway foreign court. On trial is our very national character and conscience.