Looking beyond the ICC travesty of justice in Kenya

By Douglas Okwatch

Beyond the travesty the International Criminal Court has committed against us as Kenyans and as an African people lies the opportunity for reflection.

Perhaps a good starting point is to acknowledge that in our self-induced, mutual fear of the court, we have had at least one violence-free election since six of our political leaders and public servants were hauled before the Hague-based court.

Our primordial election time instinct to arm ourselves with machetes and butcher each other on behalf of our tribal chieftains was pretty much subdued in 2013. Instead we retreated to the safer and more anonymous platform of social media, where we waged the bloodletting away from our streets and villages.

Peace in the Rift valley has generally held.

While for many Kenyans the short encounter with international criminal justice has been like a Frankenstein experiment, the deterrent effect the ICC cases have had on our volatile politics deserves giving some thought.

Deterrence is a central tenet to the Rome Statute. Indeed in its preamble the Statute signposts deterrence as a goal, on par with ending impunity, by putting on notice perpetrators of grave crimes that threaten the peace, security and well-being of humanity.

There exist two arguments for the peace that prevailed before, during and after the hotly contested 2013 presidential elections. One of these derives from the ICC’s supposed deterrent effect, which put the fear of God into our political hotheads and their machete wielding tribal gangs.

The other is the promulgation of a new Constitution in 2010, which ushered in a new (some are now calling it false) dawn in the management of our public affairs. This school of thought contends that the reforms in the top echelons of our justice system and electoral machinery had instilled some confidence in our top political parties and minimised the prospects for violence.

As we may all be aware by now, for the losing side in the 2013 presidential race, this confidence in the justice and electoral system was only up to the point the verdict on the contested election was delivered by the Supreme Court.

That there was no violent reaction to this outcome, in spite of the palpable tension that built up ahead of the ruling, may again be attributable to some deterrent factor probably traceable to the ongoing cases at the ICC.

Deterrence proponents like Justice Philippe Kirsch Justice Philippe, the first president of the ICC and founding father of the court, together with Christine Chang, the first senior trial attorney to work in the Office of the Prosecutor, share the view that deterrence is the most important goal of the ICC.

Kirsch posits that by putting potential perpetrators on notice that they may be tried before the Court, the ICC is intended to contribute to the deterrence of these crimes.

ICC’s intervention in Uganda has been repeatedly cited in pushing this deterrence agenda.

Uganda in 2003 wrote to the Hague-based Court asking it to address atrocities committed on its territory by the Lord’s Resistance Army. The LRA had been fighting Uganda’s military since 1987 and had perpetrated mass killing, looting, abduction, and other forms of violence against civilians.

In mid-2005, the ICC issued arrest warrants for Joseph Kony, the LRA leader, and four of his commanders. However, the ICC has been unable to execute the arrest warrants for Kony and his warlords.

Kony remains at large, supposedly roaming the expansive forests of Central Africa Republic and the Democratic Republic of Congo, according to accounts, while some of his co-accused rank-and-file are thought to have died.

Deterrence adherents like the International Crisis Group quickly point to the peace deal and subsequent sustained peace in hitherto war-torn northern Uganda, attributing this to the ICC arrest warrants against Kony and his ilk. Additionally, the warrants, in ICG’s considered view, have served to warn other potential perpetrators of similar crimes in northern Uganda that ‘Big brother is watching’.

But anti-ICC crusaders like my friend Dr. David Hoile, author of The ICC: Europe’s Guantanamo Bay? strongly disagree with the deterrence thesis. He calls it a lie and that it doesn’t work, citing distinguished Columbian human rights lawyer Gustavo Gallon, who argued long before the court was established that deterrence can be a dangerous illusion if it leads us to assume that no more violations will be committed after the actual establishment of an international criminal court.

No legal system, Gallon posits, can ensure the elimination of criminal activity.

The big question now is: So just where does that leave us?

With only two of the original sic cases remaining at the ICC with quite a reasonable possibility that they could also not yield any convictions our future lies with truth and reconciliation. The case has been made that amnesties and truth commissions is the way to go.

We all know how post-apartheid South Africa’s truth, justice and reconciliation commission brought together a once deeply divided nation.

I firmly believe that Kenya can succeed with a real truth, justice and reconciliation commission, whose primary purpose is to address and resolve our so called historical injustices without trying to shield perpetrators of these alleged injustices from bearing criminal responsibility for their actions. That’s where we have failed, and that’s where we should begin building our future as a nation. Rwanda did it, we also can.

Political correctness underlie crisis in Kenya’s security sector

Our security is broken. That’s a fact- a cold, hard one. But there aren’t going to be any quick fixes. In the natural order of things, though, citizens would have expected high profile resignations of those entrusted with our national security in the face of the outrage that greeted the Mandera slaughter.

It happens everywhere in civilized society.

In 1999, while tendering his resignation in the wake one of India’s worst rail disasters, Railway minister Nitish Kumar remarked: “I do not want to punish others… I am interested in punishing myself and therefore I decided to resign from the cabinet, owing moral responsibility for the tragedy”.

Sometimes in the interest of the public and for the greater good a Head of State’s hand may be forced in the event the office holder just doesn’t get it and is reluctant to leave office.

But that isn’t likely to happen. It didn’t happen after Westgate. It didn’t happen after Mpeketoni. It didn’t happen after Kapedo.

Unlike the Indian Railway minister neither Interior Cabinet Secretary Joseph ole Lenku nor Inspector General of Police David Kimaiyo is likely to take moral responsibility for the slaughter of the innocent.

And, sacking top public officials, it would appear, isn’t President Uhuru Kenyatta’s style of doing things.

So we are in a state of flux.

But this debate needs to shift focus just a little and go beyond the outrage directed at Lenku and Kimaiyo. The new Constitution was supposed to herald change in the manner in which we conduct our affairs. We still more or less do things the same way we have always done them.

To that extent, therefore, there’s nothing worth deciphering regarding just how the President ended up appointing two individuals, who in the court of public opinion have completely failed him in discharging his cardinal constitutional duty of protecting the lives and property of Kenyans.

This failure to adhere to the principles of the new law partly explains what has now degenerated into a deadly circus and national shame. Through the so called tyranny of numbers, several appointees to public office deemed in some quarters as undeserving, have escaped the rigours of vetting as required by the new law and landed public jobs.

Political correctness as opposed to merit is still pretty much what counts.

Even in calling for the sacking of the two security chiefs our Members of Parliament, Senators at al who have jumped into this bandwagon have a better avenue embedded in law on how to proceed with such a demand.

But they remain stuck in a time warp.

Article 152 of the Constitution vests upon the President the powers to re-assign or dismiss a Cabinet Secretary. However, Parliament has to initiate the process. All that needs to happen is for an MP to propose a motion requiring the President to take such action. The legislator requires the support of at least a quarter of the members.

Regarding the Inspector General of Police, Article 245(7) of the Constitution provides that the President may remove the IG on grounds of incompetence, serious violation of the Constitution, gross misconduct, bankruptcy, mental or physical incapacity.

For observers like myself, I find it completely hypocritical that our Members of Parliament, who rubber-stamped these appointees, now want the President to look bad, politically speaking, by heeding to their demands.

Our ethnic voting blocs can be very unforgiving. There’s no better student to this lesson than former Prime Minister Raila Odinga.

While President Kenyatta’s reluctance to act on Lenku and Kimaiyo may be read in some quarters as one of political expediency it also wrong to expect him to do things in pretty much the same way we have always done them. The era of sacking people by fax machine, or on the 1 O’clock news bulletin should be well behind us.

This isn’t to say that incompetence should be tolerated.

As a country, apart from serving as a moment for us to be deeply ashamed of ourselves, this crisis should also re-awaken us to the need adhere to the principles of public appointments as outlined in our laws.

Chapter 136 of the Public Appointments Parliamentary Act outlines issues for consideration by the relevant House of Parliament in relation any nominee for an appointment.

These include among others; the procedure used to arrive at the nominee; constitutional or statutory requirements relating to the office in question; and the suitability of the nominee for the appointment proposed having regard to whether the nominee’s abilities, experience and qualities meet the needs of the body to which nomination is being made.

Additionally, the need to make these processes participatory cannot be over-emphasized. Because it is only this way that the public can ‘own’ the appointee. With ownership comes responsibility.

So when “things fall apart” as has happened with Lenku and Kimaiyo, the President can boldly face us and say “the buck stops with all of us”. But as they stand right now, he cannot.

Investigative journalism in Kenya at a crossroads

The dust is fast settling on a dramatic TV expose of the alleged questionable activities of a local pastor. Globally, the media scene can be quite fluid. News is a fast moving, highly perishable product. This is both a good and a bad thing.

The miniskirt outrage has quickly stolen the thunder from KTN journalists Mohammed Ali and Allan Namu’s scintillating documentary.

In Kenya, where follow up isn’t a strong journalistic tradition, it is particularly a bad thing. This weakness has helped reinforce our new found collective doctrine of “accept and move on”.

As a former investigative reporter and a part-time lecturer of journalism, I’d like to weigh in on this issue before it becomes water under the bridge.

Of utmost importance is that apart from setting tongues wagging this TV expose drew out immediate policy response from the Attorney General. For once, in recent times, an investigative report forced an issue of seemingly immense public interest onto the policy agenda.

Other than the organs of State various umbrella religious organisations in the country have also weighed in on the issue.

That’s how it should be.

The Director of Public Prosecutions is also understood to be considering a criminal investigation into the activities of the so-called ‘Prophet’ Victor Kanyari of the Nairobi-based Salvation Healing Ministries.

Footage from the expose appears to suggest that at Salvation Healing Ministries miracles can be manufactured and doled out—at a fee. This seems and sounds quite familiar, doesn’t it?

By peering into the dark side of our society this expose has helped reaffirm the watchdog role of investigative journalism in Kenya.

Going forward, it would be interesting to watch how both the policy debate and the criminal investigation take shape. The Attorney General’s policy pronouncement has, however, drawn out the church which reads in the move an attempt to regulate it.

Hugo de Burg, a British media theorist, author and academic, describes investigative journalism as the first rough draft of legislation.

Yet for all its brilliance in execution and outcome(s) the Kanyari TV expose raises pertinent questions both about the practice and future of investigative journalism in Kenya.

Perhaps this concern can best be captured by posing the question: Was Kanyari a soft target? Are the anticipated policy actions of the Attorney General and the Director of Public Prosecution also motivated by this fact?

“This guy will come down on us like a ton of bricks,” my Editor-in-Chief once said to me regarding an expose I’d put together on a crooked lawyer, who was in the habit of stealing clients’ money.

The story was backed by documented proof of the alleged pilferage(s), extensive victim testimonies, including a report of a tribunal of the Law Society of Kenya on the lawyer’s conduct. The theft ran into hundreds of millions of shillings.

It never saw light of day.

In the more developed democracies in the West investigative journalism has helped bring down governments, imprison politicians, trigger legislation, reveal miscarriages of justice and shame corporations.

Watergate, the quintessential investigative journalism, forced a sitting US president out of office. Richard Nixon left the White House with a lot of egg on his face.

According to de Burg, Watergate “encapsulated and exemplified” all of the difficulties and challenges investigative reporters face, involving source development, triangulation, tensions with editors and tremendous political risks.

The question of whether Kanyari was a soft target can be raised within the context of recent investigative reports published in the local media.

On October 11 The Daily Nation ran a story with this headline: Forty MPs benefit from Sh8bn land in Nairobi.

A market leader with a strong tradition of investigative reporting one would have thought that the newspaper had put together foolproof evidence linking the lawmakers to the land and, therefore, had a duty to the public to name and shame them— then meet them in court if they dared sue. It didn’t name the MPs.

Perhaps because it’s not that simple.

A parliamentary committee appeared interested in the information the paper had on the Karen saga. But it would seem it didn’t push for it.

On November 8 The Standard went to town with this headline: Trouble in Jubilee Government over MPs in extortion ring. The story alleged an untouchable extortionist cartel of senior politicians had emerged within the top ranks of the Jubilee administration. It’s attributed to the powerful Nancy Gituai, the President’s own Chief Advisor on Political Affairs.

One would expect that with such a powerful source in their corner The Standard had all it takes to secure critical documents and interviews and put together a powerful investigative piece that would put the faces of these crooks on page one of their paper.

Instead, it chose the mundane route of publishing mere claims of a high level official.

There are numerous other examples; enough to form a case study.

It isn’t quite clear though what this kind of (investigative) journalism hopes to achieve. What is clear, however, is that the media in Kenya today is ranged against powerful forces. Politics and the economy have merged, shrinking the media’s traditional investigations turf. Each day the options of who and what the media can investigate appears to be narrowing down.

Yet the media still feels it has a duty to the public.

So instead of delving into substantive investigations, the media is teetering more and more towards a populist genre of investigating reporting, which utilise techniques of investigative journalism, and involves significant revelation, but whose subject matter raises no substantive issues of public policy.