Shame on us! And shame on our leaders! How can we have allowed the dirty underwear of our country to be washed by foreigners before the whole world?
We are guilty of triviality, complacency, and insensitivity regarding the interests of our country and those of the vulnerable victims of our political crises. And we shouldn’t be surprised that this is the way things have turned out. The Commission of Inquiry into Post Election Violence foresaw this result three years ago. It provided in its report for the Special Prosecutor of the ICC to take over the Kenyan case should a local mechanism not be established to deal with the post-election violence cases.
As I watched Ms. Sureta Chana give her moving account to the ICC judges, it dawned on me that I have never heard any such plea made locally on behalf of the interests of the victims. Indeed, she accused the government of ignoring the victims and denying them not only justice against the perpetrators, but even a return of the property taken away from them. Ms. Chana said that victims felt the government had no time for the “little man” but was out to shield the powerful.
It sounded like tales from Sierra Leone or Rwanda. The elements are the same: brutality, death, destruction, desperation and denial of justice. Any foreigner who is watching the proceedings will have a difficult time merging the picture of the Maasai Mara wildebeest migration with the burning church in Kiambaa. And if they had booked a tour to Kenya, I believe they would think twice.
I will say again that it is a shame. And we Kenyans are as guilty as our government of an almost treasonable negligence of our country and its strategic interests. We have agreed to be drawn into political machinations which serve the selfish interests of a few people at the expense of hundreds of thousands of Kenyans awaiting an elusive justice and at the expense of our country’s international reputation.
But all is not lost. This dark cloud has a silver lining. For as I watch these proceedings, I am getting the confidence that impunity in Kenya is being dealt a fatal blow. After all the games that have been played in an attempt to prevent the post-election cases from being investigated, the ICC is making the clear point to us that this is an interconnected world, and the rest of the international community has a duty to intervene in what happens locally.
I want to see any Kenyan try to instigate violence in the future. Whatever the outcome of these proceedings, we now know that there is an international criminal justice system that is not susceptible to our local machinations and that can track down the activities of any person to the smallest village in the country.
The reality about our criminal justice system as well stated by Ms. Chana is that there are untouchable Kenyans. There exists a conspiracy among the political elite by which they ensure that none of them can be taken through the indignity of an investigation, whatever the crime. And, in the few instances, when investigations are opened, usually by the anti-corruption authorities, the result is dependent on the political dynamics of the day, rather than the possible guilt of the suspect.
The ICC is giving us a new reality. Even if these cases are dismissed, the point is now made that no person is untouchable, and no Kenyan is a “holy cow”. Any person, whatever their wealth or power, can be investigated and put before a court of law if he is reasonably suspected of committing a crime.
Another reality I see coming through these proceedings is that Kenyans can betray their leaders. The anonymous witnesses being referred to by the prosecution are people who claim to have been involved in the alleged mayhem. They also seem to have been political supporters of the suspects.
Not even in election petitions do you see Kenyans betraying their leaders in order to give their version of the truth. Maybe it’s the security that comes with being an ICC witness, and the promise of relocation to another country. Nevertheless, it is a practice that is bound to take root in Kenya, especially since we are starting our own witness protection programme.
Although I believe that the criminal justice system had no genuine interest in investigating the political clashes of 1992/93, 1997/98 or even 2007/08, it is conceivable that the statement by the investigators that witnesses were unwilling to write statements and testify was sometimes true. This is unlikely to happen again as, clearly, with the right motivation, Kenyans can betray each other.
As these proceedings continue, I am standing with the victims, and I continue to pray for a result that is truthful and just for all, the suspects included.
Mr Mwangi is an author and advocate of the High Court of Kenya.