Presumably, the ICC intends to charge those responsible for the 2007-2008 post-election violence (PEV) so as to accomplish at least two objectives. First, the cases will deliver a major blow to a corrosive culture of impunity. Kenyans will see that no one is above the law and, moreover, if the Kenyan judicial process fails to deliver justice because of the culture of impunity, it is possible to invoke an international machinery to seek justice. Second, the ICC cases will bring some measure of relief to the innocent who suffered loss of property and livelihood, years of hard work, and death. In fact though, upon closer examination, it is clear that neither of these objectives is likely to be achieved through the ICC process. Here are the reasons.
Let us agree that a judicial process, whether in the form of a local tribunal, the ICC, or the emerging African Union-led court for crimes against humanity is supposed to seek justice on behalf of the 1,300 dead and 600,000 Internally Displaced Persons (IDPs).
Any Kenyan who has access to the survivors of PEV, the IDPs, should talk to them and feel the depth of their pain. As we do that, we should say to ourselves, ‘There, but for the Grace of God, go I’. The IDPs are our brothers and sisters, fathers and mothers, sons and daughters. Significantly, they are also witnesses. They can tell us who chased them, burned their homes, livestock, and churches, and hurled screaming babies into bonfires of their homes or wreaked havoc in Nairobi, Kisumu, Londiani, Kericho, Eldoret, Molo and at the Coast. Do these survivors agree with the ICC that the leaders who were mentioned by their tormentors at the height of the carnage are the Ocampo Six? Anyone who interviews a sample of the IDPs will come away with the conclusion that the IDPs overwhelmingly disagree with the composition of the list: it omits the names of some who drowned the Kenyans in torrents of speeches demonizing other Kenyans, or provided Kenyans with funds to buy weapons or paid Kenyans for having killed fellow Kenyans. This incompleteness and inaccuracy of the list means that even if the ICC process finds some or all of the Ocampo Six guilty, those who bore the brunt of the violence will still feel that the true perpetrators of the PEV, the paymasters, have escaped. To many IDPs, it will seem that while claiming to be eliminating impunity, ICC has itself sanctioned epic impunity. More importantly, many of the IDPs will not feel that justice has been served. Thus, in the eyes of the IDPs and the majority of Kenyans who empathize with them, the ICC will have failed on both objectives: ending the culture of impunity and giving the victims a sense that justice has been served.
Which raises a fundamental question: if the ICC will not achieve these primary objectives, exactly what is it doing in Kenya? Recently we have read in newspapers that the ICC is considering expanding the number of charges against some of the people on Ocampo’s list. This still does not address the problem of the glaring fatal flaw of inaccuracy and incompleteness of the list of those charged. The kingpins have been left out. What the ICC should be doing is to expand the list so as to include the true leaders of the 2007-2008 PEV, and, significantly, save ICC’s tenure in Africa. Anything else is theater, not justice. The ICC can bring new charges, bring new legal talent, move the cases to a new venue, or prolong the process until Kenyan nerves reach the breaking point. None of it will address the flaw at the center of the ICC cases. If the Ocampo list was culled from a list that was in turn derived from another list that was developed through our compromised judicial process, then perhaps the entire ICC process is faulty because it is grafted upon the work of institutions of questionable integrity. The ICC process is a house built on quicksand; the impunity was already built into the lists that ICC inherited. Therefore, there is another way forward: abandon the cases entirely because they were mishandled from the outset, and, in the process, save face for the ICC. The option to suspend the ICC process in Kenya should be considered seriously.