A new war front of sorts has opened lately as the Government and the
Orange Democratic Movement (ODM) accuse each other
of gross human
rights abuses in ongoing post-election violence with threats of taking
their opponents to the
International Court of Justice at The HagueThese
threats, that have become louder as the political crisis enters a new
phase are, to say the least, making Kenya a laughing stock among
international legal practitioners. It speaks volumes of our leaders’
understanding of the state of geo-politics and the role therein of
international institutions.To set the record straight; the ICC is not
your everyday court that
politicians can run to for any kind of suit.
For a case to be instituted at the ICC, it must be shown that Kenya, as
a State, is unwilling or unable to investigate or prosecute it and that
domestic remedies have been exhausted.If the reason for going to The
Hague is because the concerned party has no faith in local judicial
mechanisms, it will have to prove that the case has been investigated
by the State and that the investigating authority has decided not to
prosecute the persons concerned.That is the rule that all parties must
follow; any case that does not fit the bill is for certain thrown
out.This paper wants to believe that both the ODM and the government
have intellectuals who have looked at the Rome Statute and know the
procedures for filing a case at The Hague. Unless the United Nations
(UN) Security Council refers the crimes in Kenya to the ICC, the above
steps have to be followed. The same principles apply to the African
Court of Human Rights.This can confirm that cases that could be
settled in the home countries have no chance of being heard at
ICC. We believe that the Kenyan judiciary — despite the
credibility crisis it is currently facing — can handle cases involving
the alleged crimes. Apart from painting Kenyan professionals in bad
light in the eyes of the international community, the threats to
arraign opponents before the ICC give false hope to victims of
political violence who have lost loved ones, property or have been
displaced. Instead of scoring cheap political points and ultimately
making fools of Kenyans on the international scene, politicians should
show empathy and set in motion processes that will ensure the rights of
the aggrieved right here at home.There can be no doubt that heinous
crimes have been committed during the past three weeks and that
perpetrators of these crimes need to be brought to justice. Successful
prosecution and settlement of these matters right here at home has the
potential of not only reaffirming our position as a country that is
committed to the rule of law, but also showing the government’s
commitment to protect every Kenyan and their property.Threats by
politicians to institute cases at the ICC also brings into sharp focus
legal institutions in Kenya. In particular the Law Society of Kenya
(LSK) and the state funded Kenya National Human Rights Commission
(KNHRC) should be providing the necessary legal advise to politicians
who are carelessly making claims of genocide and ethnic cleansing in
their wars with each other.Such claims only fuel chaos and widen the
divide among already polarised communities.It is a pity that the LSK
and the KNHRC have been seen by some quarters as biased. But they must
play their role even at a time when professionalism is being sacrificed
for cheap ethnic goals.Kenya is part of the global village. If any
party has no faith in the Kenyan judiciary, it would be better to get
irrefutable proof of that fact and use it to lodge a complaint in an
international body. If not, let the politicians stop their empty
rhetoric and get into action that will positively impact on the
livelihood of suffering Kenyans.