ICC is no Solution: Kenya Can Heal Itself

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By Martin Kimani

In the years before South Africa became a beacon of democratic progress, it was the site of some of the world’s most notorious human rights violations. In addition to the crimes committed by the apartheid regime, there were violent clashes between supporters of the African National Congress and the Zulu nationalist Inkatha Freedom Party that left thousands dead. South Africa opted to grant amnesty for “political” crimes in exchange for truthful testimony through a restorative justice body known as the Truth and Reconciliation Commission.

But if the International Criminal Court had existed in the 1990s and applied the same evidentiary standards that were used to indict Kenya’s leaders in 2011, it might very well have sought to charge Nelson Mandela, F.W. de Klerk, and Inkatha’s leader, Mangosuthu Buthelezi, for the crimes that occurred on their watch, likely with fatal consequences for South Africa’s successful transition.

Many South Africans were skeptical of the idea of a T.R.C., with its parade of sordid killers walking off scot-free.

But South Africa was afforded — and afforded itself — an opportunity to pursue its own solution to its challenge. If it worked in South Africa, it can work in Kenya, too. Our recent record of reforms demonstrates that we have an appetite to take up this responsibility.

Peace will not come from a court case in a distant land. While there is certainly a place for punitive justice, Kenyans must ultimately seek ways to confront our history with an eye toward acts of restitution rooted in the customary practices so many of our people still live by and believe in. If such restorative justice is still legitimate, then democratic countries like Kenya must be given the space to reform themselves and deliver it.

It is no accident that African states adhered to the Rome Statute, which established the I.C.C., in large numbers: The thirst for accountability and justice in Africa is deep and real. Many Africans’ discomfort with how the I.C.C. prosecutors, first Luis Moreno Ocampo and now Fatou Bensouda, have pursued their mandate in Kenya should be understood in this light, and not as a cynical attempt to escape accountability.

Every Kenyan knows there have been serious violations of human rights here, and we have taken steps to deal with it. After the post-election violence in 2008, a coalition government was formed and we overwhelmingly approved a new constitution. We now have a real separation of powers, an independent judiciary and prosecutor, an imperial presidency trimmed to size, and power has been devolved to the local level.

Like South Africa, we have a truth, justice and reconciliation commission that completed its work this year. And an independent electoral commission and courts delivered a free and peaceful election in 2013 whose winners, Uhuru Kenyatta and William Ruto, were political rivals in an alliance that united the main ethnic communities at the heart of the 2008 violence.

Usually, these developments would have been hailed as a triumph of democracy. And an I.C.C. that truly acts on the principle of complementarity, establishing it as a court of last resort in the event of failed national systems, would have returned the cases to Kenya.

But the persistent response — particularly loudly proclaimed by the human rights community — has been that Kenya is unwilling or unable to confront its 2008 postelection violence. The dramatic and salutary changes we have made do not seem to dissuade this chorus. Nor do they seem to recognize that the I.C.C. indictments were overzealous and lacked rigorous investigations.

In April, the trial chamber in the Kenyatta case found that “there are serious questions as to whether the Prosecution conducted a full and thorough investigation of the case against the accused prior to confirmation.” The prosecutor depended mostly on reports by local intermediaries and a government commission that — operating in a politically poisonous environment — was subject to agenda setting and manipulation.

Mr. Ocampo took the case even though investigative systems were poorly developed, allowing warring politicians to transfer local political rivalries to The Hague. This was reflected in how the two wings of the coalition government could never agree on requests to refer the cases back to Kenya. At the time, the cases offered one part of the coalition the advantage of removing the accused as viable political actors in the 2013 election.

In the Kenyatta case, the I.C.C. relied heavily on a single witness to establish that the accused had conspired with others in helping facilitate atrocities. This witness later admitted to having lied, and the trial chamber admonished the prosecution of sitting on this potentially exculpatory evidence for months without releasing it to the defense.

Even the I.C.C.’s supporters like the Open Society Justice Initiative acknowledge there have been problems with its processes. Analyzing the cases in the Congo, they note that local intermediaries, who help the prosecutor collect evidence, might also be insiders who were involved in crimes themselves.

The I.C.C.’s decisions about certain countries’ readiness are also suspect. This October, the same week that Libya’s prime minister was kidnapped by one of the country’s many autonomous militias, the I.C.C. agreed that Libya’s courts were robust enough to try the case. If Libya can manage on its own, Kenya certainly can.

This matter goes beyond notions of state sovereignty. Countries should retain the right to pursue justice at their own pace, and using restorative methods in addition to punitive ones, if they believe that is more conducive to peace.

Those who believe in the I.C.C. should be the first ones to worry about its weak investigative capacities and vulnerability to manipulation. This gap has been obscured by the highly emotional standoff between Africa on the one hand and the I.C.C. and its diplomatic and human rights backers in the West on the other. The rhetoric from both camps makes it appear that for one side to win, the other must lose. But there are still constructive ways to move forward.

A first step would be improvements to the I.C.C.’s standards of evidence and procedure that make it less vulnerable to political manipulation. Then Kenya, like South Africa or Rwanda or Northern Ireland, must also be allowed the room to continue building our democracy by our electoral choices being respected, to deploy restorative justice approaches and to ensure that the political fractures we are trying to heal are not widened by the cases in The Hague.

Martin Kimani is Kenya’s permanent representative to the United Nations in Nairobi.

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