Kudos KDF fight fire with fire and wipe out Al-Shabaab by Makau Mutua

I am a worried man; worried by the security challenges that my homeland faces. But none of these challenges are as foundational as the brazen terror attacks by terrorists and assorted thugs.

Last Saturday’s heinous terror attack — by Somali Al Qaeda affiliate Al-Shabaab — at the upscale Westgate Mall struck at the heart of the Kenyan elite.

Sinister killings in Wajir, Marsabit, and Mandera counties beg more questions than we seem to have answers for.
Let me show you my cards.
I was an early and unapologetic advocate of the war against Al-Shabaab. The malevolent terror group is a medieval menace that must be stamped out.
I was thrilled when the Kenya Defence Forces joined African Union forces to wrest control of Somalia from the terror group. I bet every Kenyan was very proud of the great work and sacrifices of the men and women of KDF in Somalia.
It would’ve been foolish for Kenya to play possum, or blind, to the Al-Shabaab menace next door. But everyone knew that the devious extremists — who would return us to the Stone Age — were bound to exact revenge. It was a question of when — not whether — they would retaliate. Now they have.
American President Benjamin Franklin once said “those who would give up essential liberty to purchase a little temporary safety deserve neither safety nor liberty”. The import of this is that a political democracy can’t exist where fear drives folks to trade away basic freedoms.
The fear of attacking Al-Shabaab — because they would counter-attack — would simply have appeased the monster. Just like a “nation of sheep begets a government of wolves” — to cite the famous American broadcast journalist Edward R. Murrow — cowering in the face of a bully simply emboldens him.
Mexican revolutionary Emiliano Zapata had it right — “it’s better to die on your feet than to live on your knees”.
That’s why Kenya must fight fire with fire. Methinks Kenya must show Al-Shabaab — and the thuggish marauders in Northern Kenya — who is daddy. No state can survive the sort of insecurity creeping into Kenya.
Which begs the question — what can the Kenyan state do to fully control the country’s security?
Very soon no corner of the country will be safe. I am not advocating a police state. But I am asking for smarter police work, greater and clean security intelligence, and zero tolerance for corruption within the armed and security forces if Kenya is to be secured.

Some reports indicate that criminal and terror rackets may have corruptible moles within some of the Intelligence and security services.

Kenya can’t effectively surveil and deter terror attacks with a porous security apparatus. Effective and credible policing requires uncompromised professionalism within the ranks.
Let me return to the meaning of the Westgate terror attacks. Without doubt, the mall is a high value target for terror groups. There’s no more inviting target than upper class Kenyans and well-heeled expatriates.
The September 11 attacks in the United States taught terrorists one valuable lesson — you could deal a terrible blow to the economy by strategic attacks that strike at commanding heights of the economy, or state.
My guess is that the Al-Shabaab attackers sought to inflict pain on the Kenyan economy by demonstrating the vulnerability of a key economic venue. Scare away the shoppers, and you deal a blow to the economy. But this is what Kenyans and expats can’t afford to do — be scared away.
The government will have to demonstrate that it’s in control — and that shoppers are safe — if the terror group’s strategy is to fail. I suggest that Kenya works with states that have more experience with tracking such groups and preventing terror attacks.
Trans-border terror groups like Al Shabaab target not one country, but all. It’s telling Al-Shabaab simulated the 1998 Al Qaeda terror attacks in Nairobi and Dar es Salaam — by the simultaneous attacks in Mogadishu and Nairobi. That suggests more needs to be done to completely vanquish the group in Somalia.
Kenya must strike back, and wipe the group off the map.
Finally, I think there is a “moral causal link” between the attacks in Northern Kenya and the one at Westgate. The inability to put down the attacks in Wajir, Mandera, and Marsabit has exposed Kenya’s soft underbelly.
It’s given Al-Shabaab and other militia groups the impression that it’s open season. These are alarming developments that could destroy the country.
Kenya faces multiple challenges, but security must now top the list. The security question must be addressed now before it’s too late.
The primary responsibility of statehood — its legitimate claim to sovereignty and independence — is the ability to effectively govern and control its own territory. A state cedes the right to self-governance if it fails this crucial test.

Kudos KDF fight fire with fire and wipe out Al-Shabaab by Makau Mutua

 

 

 

We refuse to be blackmailed and derailed by Raila Odinga

Once again, we have become victims of a cowardly attack that resulted in many deaths and injuries.

My thoughts and prayers are with all those who lost loved ones or who lie in pain with injuries from this attack. We are in this together.

I thank the security officers who put their lives on the line for the sake of our country. I also salute the many ordinary Kenyans and visitors who refused to bullied and picked up their arms to save compatriots and fellow human beings at the Westgate shopping mall.

ACTS OF PATRIOTISM

We noticed these rare acts of courage, patriotism and love. We don’t take them for granted.

These attacks were aimed at ordinary, hardworking Kenyans out to enjoy what the nation they work so hard to build has to offer on a weekend.

The terrorists targeted Nairobians of all races, all colours, all religion and all ages.

They targeted black and white, Muslim and Christian, Hindu and Jew, the young and the old.

Yet the objective was to divide us by religion and race and to dictate to us what we can and what we cannot do.

So the terrorists are telling us that they spared Muslims and slaughtered non-Muslims.

We must reject this cheap lie. We have seen our Muslim compatriots burying their dead from this attack.

The terrorists want to separate us from our friends abroad. So they are repeating how among the attackers were recruits from US, UK, Canada, among other Western nations.

Yet we know that these nations also lost citizens in this attack and their security and intelligence agencies are currently helping us get to the bottom of this crime.

The terrorists are telling us they are Al-Shabaab with recruits from Somalia who want us to withdraw our troops from that country.

What a lie! We have seen Kenyans of Somali origin also burying their dead from the Westgate attack. We also know Al-Shabaab is rejected even within Somalia where people are enjoying peace since the gang was routed out of key towns.

We equally saw Kenyans of Somali ethnic origin volunteer and take the war to the terrorists to rescue fellow human beings at the Westgate Mall.
Let us call the attackers of Westgate by their name: terrorists.

They are people who have lost all sense of humanity and for whom words like brother, sister, dear country and fellow citizen no longer exist.
Nairobi is the biggest and most cosmopolitan city in East and Central Africa. Citizens of nearly every nation on earth are found in Nairobi.

Those who attack us do it not because they want to hurt members of any particular faith, race or nationality. They do it to attack the human race in its rainbow formation at one go. That is what they did at Westgate.

Our response must be to stand together with the injured, the bereaved and the community of nations that believe in freedom, even as we seek answers to the many questions that Kenyans will rightly be asking.

BETTER RESPONSE TO THREATS

Even as we stand together, we must demand a more serious, more convincing and a better-coordinated response to the security lapses that have become part of life in Kenya.

As we engage terrorists abroad, we must see clear indications that we have taken steps to detect and deter attacks that terrorists plot against us.

I know many such planned attacks have been nipped in the bud but we must up our game and our people must be convinced that we are doing all that we can. Today, a number of citizens think so much remains to be done.

I can’t blame them. For much of this year, attacks have become the order of the day in places like Moyale, Garissa, Lodwar, Samburu, Turkana and Nairobi, among others.

Security has deteriorated in places like Bungoma, Busia, Tana River, Mwingi, Kitui and Kuria.

Many attacks in Northern Kenya seem to be the work of sleeper terror cells out to test our preparedness and resolve.

Even where the attacks may not be by terrorists, their frequent occurrences paint a picture of a lawless nation. That is the platform on which terrorists act best. We must dismantle that platform.

We need to prevent these attacks and to deal with those plotting them in a manner that clearly shows we know what they are trying and what is at stake.

It is my hope that in the coming days, as a reward to our citizens for their patriotism, the government will publish a review of its intelligence and security on this attack.

DEVASTATING BLOW

Of course, we expect the government to leave out material that would prejudice the work of our agencies.

As a nation, we have taken a devastating blow.

But I also feel very proud to be a Kenyan at this moment because it is clear that our spirit is not broken, our focus not dimmed.

We have refused to allow the terrorists to derail the flow of life in our country and we have refused to turn against each other as they hoped.

Our airports, our roads and our port are operating at full capacity. Soon, Westgate itself will be up and running.

We refuse to be blackmailed and derailed.

Our soldiers must continue the good work in Somalia where they have made life more bearable, particularly for girls, women, children and the youth.

Thanks to our soldiers, schools, colleges and universities have reopened in Mogadishu and the youth are once again able to pursue education and build a secure future, while new-born children are being vaccinated against preventable diseases and girls are able to go to school. We shall remain the force for good.

As a nation, we are ready as ever to receive friends from abroad with the open arms and genuine smiles that we are known for.

Terrorists shall never change who we are.

Raila Odinga is a former Prime Minister of Kenya. 

We refuse to be blackmailed and derailed by Raila Odinga

Interview Abdul Hajj recounts rescuing Westgate Hostages

What if the Nairobi attack that feels close to home by Lindsey Hilsum

What if the Nairobi attack that feels close to home by Lindsey Hilsum

Al-Shabaab on Westgate attack

Update Related articles :Who is Al-Shabaab interview with Mary Harper

Kenya Mall Al-Shabaab attack reveal  security weaknesses by Parselelo Kantai

Nairobi Shopping mall attack all we could hear was screaming and shooting by Mike Pflanz

Midway through the morning, a detachment of Kenyan special forces troops sprinted up the dozen shallow steps to the front of Nairobi’s upmarket Westgate shopping mall, by then firmly under the control of a gang of Islamist gunmen.

Armed police beckon a woman and child to safety. At least 30 people were killed in the atrocity, the worst terror attack in Nairobi since an al-Qaeda bombing at the US embassy killed more than 200 in 1998. Photo: Goran Tomasevic /Reuters

By Mike Pflanz, Nairobi

10:44PM BST 22 Sep 2013

After a tense standoff, they had planned to storm the building and take control of a situation becoming more deadly by the hour. But the glass doors were blocked.

Only when the troops forced their way through did they realise that dead bodies, as many as 20, had been piled against the entry to slow the soldiers’ access.

Stumbling inside, they immediately came under sniper fire from high up on the second floor balcony. Two died. The rest were forced to pull back.

This was the moment, relayed to The Daily Telegraph by security staff and community workers helping the troops, that the professionalism and ferocity of those holding the shopping mall hostages began to become clear.

By last night, the gang – a unit of up to 15 Islamists, including men and women, and claimed to have been sent by al-Shabaab, Somalia’s al-Qaeda proxy – had held off the best of Kenya’s armed forces for more than 30 hours.

They were said to be in control of dozens of hostages, holed up in a lavatory block close to a supermarket on the ground floor. The Kenyan president refused to deny the suggestion that some of the captives had explosives strapped to them.
As darkness fell last night, there were signs that the Kenyan military, backed by Israeli agents, was attempting to bring the standoff to a conclusion.
The sound of a large explosion and brief volleys of gunfire interrupted hours of stalemate. Witnesses at the scene saw security personnel on the move and, as dusk closed, two helicopters swooped low over the shopping centre, which has several Israeli-owned outlets and is frequented by prosperous Kenyans and foreigners. Mobile phone signals also began to fail in the area.
“Godspeed to our guys in the Westgate building,” Kenya’s National Disaster Operation Centre said in a message on its Twitter site. “Major engagement ongoing.”
Uhuru Kenyatta, Kenya’s president said the chances of the siege ending well were “as good … as we can hope for”, before pledging to “punish the masterminds swiftly and painfully”.
A Twitter account, purported to be from al-Shabaab, gloated about the “Westgate Warriors” and described the terrorised Kenyans as “like rabbits caught in the headlights, still shell-shocked.”
As the Kenyan troops attempted to end the siege, the group tweeted: “Kenyan forces who’ve just attempted a roof landing must know that they are jeopardising the lives of all the hostages.”
The reason the Islamists targeted the Westgate shopping centre was clear from the moment they stormed inside brandishing AK-47s and grenades. Anyone who was not a Muslim, or could not prove that they were, was immediately targeted. Reports from separate floors of the building in the first hours of the assault told how the attackers, speaking rough Swahili and English, shouted at Muslims to identify themselves.
Many people came forward. They were ordered to speak in Arabic, or to recite a verse from the Koran, or to name the Prophet Mohammed’s mother. Those who passed this test were allowed to flee. Those that did not were executed, including children.
“People soon realised not to try to cheat,” said Charles Karani, an IT engineer who watched from beneath a 4x4 in the rooftop car park where he was hiding with his daughters aged eight and four.
Saadia Ahmed, a Kenyan radio presenter who was caught in the assault, said she saw people “say something in Arabic and the gunmen let them go”.
“A colleague of mine said he was Muslim and recited something in Arabic and they let him go as well,” she said. “I saw a lot of children and elderly people being shot dead. I don’t understand why you would shoot a five-year-old child.”
There had been no suggestion of the attack earlier on Saturday morning at the Westgate Mall, which was expecting 10,000 people to pass through its doors over the weekend.
On the terrace of the upmarket Art Caffe , shaded from the noonday sun beneath wide white umbrellas, Bushan Vidyarthi, a commercial printer, was sitting drinking a cappuccino with his brother and a supplier.
A Somali man in a smart suit walked past on the pavement below, his phone to his ear. For months there had been warnings that Westgate could be a target for Islamists. When will it happen, Mr Vidyarthi remembers thinking to himself.
Within 15 minutes, it happened. “There was a sudden very heavy burst of gunfire, and simultaneously three explosions, grenades I think, just below us on the pavement,” Mr Vidyarthi said.
“Everybody jumped to the ground. The gunmen walked along and then up the stairs. They just started spraying gunfire left and right. Bullets came through to the terrace, there was a European gentleman on the table next to us with his wife, and he was hit in the stomach.
“We were there on the ground, not moving, not putting up our heads, for 30 minutes. The whole time that man was in such terrible pain. We helped him stuff napkins into the wound. It was horrific.”
Three floors above Mr Vidyarthi, in the car park on the rear roof of the building, an Asian radio station was hosting the Junior Super Chef Competition, a cookery show for children.
Next to the yellow-and-blue bouncy castle and the trampolines, counters had been set up for 20 teams of three children each, aged eight to 16. A little before 12.30pm, the scene was of a typical sunny family day out.
Within half an hour, it would resemble “an abattoir”, in the words of one hardened security officer and former soldier who went later to try to help.
Errol Fernandes, a businessman, was sitting in the Westgate’s other smart café, Java House, on the mall’s top floor, with a view straight out to the car park.
“I just watched one kid turn, then I heard gunfire, so many shots, really loud, and the kid was gone, I hope he just fell down under the table but I don’t know,” he said. “There was no time to think. There was just gunfire, then these two guys walked in from the car park, they had guns, big guns, more than an AK. I just ran, back through the kitchen, back into the cold room there, and we slammed the door closed.”
Later they were able to flee, out to the roof, past the carnage and down a fire escape to safety. Further into the building, on the second floor, the two groups of attackers met, some coming up from the ground, some down from the roof.
Store managers dragged men, women and children into their shops and hurriedly pulled down flimsy metal shutters that looked like they would provide little protection from the heavy bullets of the attackers’ rifles. Some places were safer. The thick-doored vaults of the several banks with branches at Westgate were best. The four theatres at the multi-screen cinema were also a good option, with their lockable doors and darkness.
Downstairs in the Nakumatt supermarket, which was full of Saturday shoppers, was not a good place to be. Open-plan and with tall aisles stocked with imported foods, it was one of the first places that the gunmen moved into.
Rohini Bij, 37, a Briton, and her daughter Tanisha, 11, were on their way to the cookery event but hid in the stitching room in the supermarket’s upholstery section, jamming the door with tables, as gunfire rang out again and again outside. “All we could hear were people screaming, more grenades, tear gas bangs and the helicopters overhead,” she said. “And shooting, we heard a lot of shooting.
“I had put a lot of pressure on my daughter to go to the cookery competition and I kept apologising for bringing her. She took my hand and told me, I am just glad that I am here so that you have company. That gave me such strength.”
Peter Churchman, his wife and their young niece had been in the Art Caffe on the ground floor when the attack began. The first he knew of it was when a plate-glass window shattered. More gunshots followed and a loud blast. “I think it was a grenade, it made a lot of sound. We ran to the entrance.”
With people running in all directions, Mr Churchman, an executive at Standard Chartered Bank, was separated from his Filipina wife, Eva, for several hours.
Some inside the mall spent Saturday tweeting or texting friends on the outside. By nightfall, batteries were dead. They would have no way of knowing that hundreds of people were working through the night to prepare to help them whenever the siege finally ends.

Nairobi shopping mall attack all we could hear was screaming and shouting by Mike Pflanz 


Update related article Terror in Kenya : literature and laughs turn into pain and loss by Paula Kahumbu

I have just received news that a friend lost a colleague and his 17 year old son at Westgate, may they rest in peace.

President Kenyatta, Raila Odinga and Mudavadi address Kenya

Attack on Westgate Mall Nairobi Kenya

 

I received a call from my mother earlier today asking me whether I had heard of the attact at Westgate, or whether it was just a rumour. So, I checked the news, and sadly it was true. So far at least 22 people are said to be dead, and soldiers have moved in. My heart goes out to everyone who got caught up in this shooting, some have died, some taken hostage. It is horrific.

Here is some of the rescue operation in pictures.

Another sad day for Kenya.



Update: 11 people confirmed dead, and 29 admitted.

Kenya Stockholm has some shocking photos here, part one, 

part two  and part three

Al-Shabaab have claimed responsibility for the attack. They say attack is retributive justice for crimes committed by Kenyan military.

Update two

Two world class photographers at Westgate Mall, Goran Tomasevic  and Tyler Hicks

Update three Al-Shabaab tell Channel four news foreigners are not safe in Kenya

Can post-election violence victims get justice when the accused are in power by Maina Kiai

One of the principles of international criminal law is that justice is better served closer to the victims. This principle has its roots in domestic criminal law that cases ought to be tried as close to the scene of crime as possible.

Thus, a crime committed in Kisumu is best tried in Kisumu not only to give solace and closure for the victims of the crime but also for practical purposes such as costs to witnesses, being near the scene of the crime, etc.

Of course in dictatorships, when the state wants to harass and inconvenience defendants, it can move the trial to a location far away. The Moi regime used this approach some, especially when the calls for multi-partyism were growing and many (falsely) accused persons found themselves arrested in Nairobi and then charged in their ancestral homes.

The poster child of this strategy was Pius Nyamora the publisher of the now defunct Society magazine who was charged in Mombasa, granted bail and then had to fly back and forth every two weeks for the mentions of the case which never took off.

The financial pressures eventually led to the collapse of Society and Pius moved to the USA.

This principle has been imported into soft international criminal law and comes up when accountability for international crimes such as genocide, war crimes and crimes against humanity arises. But it needs a caveat.

Yes, when there has been regime change and the alleged perpetrators do not control the levers of power, the principle makes sense. It is a sort of victors’ justice. But when the accountability is happening in spite of the regime, not because of it, we need a rethink.

Take the genocide in Rwanda. It would have been futile to try genocide cases in Rwanda had Juvenal Habyrimana still been in power--whether or not he himself had participated—as the perpetrators were closely allied to him. And the same applies for former Yugoslavia with Slobodan Milosevic.

Genocide, war crimes and crimes against humanity have links to the politics and power struggles in society. Every genocide in the world—accepted or alleged—has had political imperatives.

This is true for the Herero genocide in Namibia, the Holocaust against the Jews, the Rwandan genocide, the Cambodian genocide, and the genocide in Darfur in Sudan.

It is the same with war crimes in former Yugoslavia, northern Uganda, eastern DRC, and Central African Republic: There is always politics around them.

And the same goes for crimes against humanity in Kenya, Cote d’Ivoire, Chad, Colombia, the Occupied Territories, Northern Ireland, Iran and Iraq.

As the current Women’s Representative for Nyeri Priscilla Nyokabi explains in the documentary, “Tomorrow Will Come”, crimes against humanity are those crimes that are so brutal, so orchestrated, so severe and so systemic that they offend the collective sense of civility of the entire world. They have a political thread running through them—even if expressed in ethnic, racial or religious terms. They are so heinous and calculated that their impact crosses borders.

It is precisely because of these political imperatives that these crimes are international crimes, cognizant that domestic authorities will have no willingness to end impunity when they themselves are in power. Or their criminal justice systems are so compromised, or destroyed, by the same political imperatives that it makes no sense to use them.

This is the situation that obtains here in Kenya. Despite all the rhetoric coming fast and furious, it is impossible to try the present accused persons within the Kenyan judicial system.

First there is the “little” matter of the constitutional immunity given to the President, meaning that Uhuru Kenyatta could only be tried in Kenya if he resigned from office. And that will not happen.

The big elephant in the room, that the anti-ICC brigades are not mentioning, is the plain fact that our police are completely incapable of handling investigations that involve Big Men. It is not just a question of capacity: It is as much a question of political will.

For them, investigation is about torture and rumors and when even that is not enough they resort to extrajudicial executions. But only for ordinary people who can’t afford lawyers, let alone good ones.

Then there is the reality of our Judiciary, bar, some High Court Judges, that has shown as much incompetence and fear as previous ones. The perfect illustration being the appalling judgment of the Supreme Court on the election petitions that hashed and rehashed oral submissions, barely making mention of the written submissions they were supposed to read.

The use of a dissenting opinion from Seychelles to amend the constitution, as well as using Nigerian and Ugandan precedents--which are not exactly famous for fair elections—showed up the weakness of the Supreme Court.

And of course there was the refusal to adjudicate on whether indictees could contest for office, which is now moot given the constitutional immunity.

As for the idea that the ICC could do the cases here: If witnesses have had to be spirited into hiding across the world, just how would they come back to give evidence? It is already tough enough even from afar to give evidence against a sitting president and his deputy, so imagine how much harder it would be to so in the country.

And with our polarised, divided and politically emotional society, and our leaders’ penchant for the dramatic to curry favour with those with power, one can imagine protests and demonstrations so large that it would be virtually impossible for the judges to make it to the court room. Especially if it is our police charged with crowd control!

Can post-election violence victims get justice when the accused are in power by Maina Kiai

It's puzzling the way Parliament sought to give ICC the boot by Gitau Warigi

Everybody is wondering why the Jubilee Government felt it had to suddenly give the ICC the boot. More puzzling is the urgency and the emotional manner in which it was done.

Parliament was recalled from recess for a special sitting.

The Speaker was summoned from a South African junket to preside over the extraordinary House session.

What was the imperative? And why the timing, just ahead of the President’s and his Deputy’s appearance before the ICC?

Wasn’t there the glaring risk of alienating the judges with this show of defiance? I suppose the Jubilee coalition has some sensible minds who had considered all that. So, one wonders, what calculation was behind all this? Was it just mindless zeal?

One of the less insane explanations I heard for the Kenyan action is that it is meant to trigger similar withdrawals from the Rome Statute by members of the African bloc.

For starters, I don’t see many African countries wanting to stampede out of the Rome Statute just yet. African governments emit a lot of hot air at their AU summits without much follow up.

Each has its own troublesome goons they would love to get their hands on and prosecute (Uganda has Joseph Kony).

Often when they can’t, they wouldn’t mind an international court process like The Hague taking over. Better still, ICC involvement cancels out the risk of the noisy human rights crowd shouting that African “despots” are holding “show trials” of their opponents.

That would have been the inevitable claim had Alassane Ouattara of Cote d’Ivoire not cannily chosen to offload his predecessor Laurent Gbagbo to the ICC.

The issue, really, is not whether the US or Fiji or whoever does not belong to the ICC whereas we do. When crimes against humanity are committed inside those countries, rest assured the perpetrators are ruthlessly prosecuted. That is not so in our case.

Crimes against humanity were committed in 2007/2008 here in Kenya. And they remain unpunished. That, in a nutshell, is the point.

I would be a stout defender of Aden Duale’s sovereignty logic if we were seeing a stream of post-election violence (PEV) perpetrators being taken through our own courts and getting their due. I have never understood why the previous administration felt it needed a Special Tribunal to prosecute people who are basically murderers, rapists and looters.

Make no mistake, the cry of PEV victims for justice is real and persistent. If the only way they can feel a sense of justice is through The Hague, so be it.

Those who imagine the PEV victims don’t support the ICC process have lost touch with reality. Let them wait and see when the actual trials begin. Don’t get derailed by the meaningless chatter about reconciliation. I have travelled several times to what we used to call the Rift Valley (where the worst violence was perpetrated) and seen nothing of this reconciliation.

All there is are fake and interminable “peace meetings” by church groups and donor-funded civil society busybodies. But believe you me, the underlying hatreds remain raw and intact precisely because the PEV perpetrators are still unrepentant.

Those whose properties were destroyed have their own way of communicating what they feel. I have seen many business premises that were burnt down and vandalised and whose owners have deliberately refused to rebuild them.

I am told they are meant to serve as permanent memorials of shame for the violence mongers.

Since the election, the Jubilee coalition has been spinning a positive but false narrative of how the antagonistic communities in the Rift Valley have patched things up.

These are fairy tales. Once the graphic witness testimony starts spilling out from The Hague on the manner atrocities were committed, the Jubilee coalition itself will come under severe strain.
I won’t be surprised if it snaps under the trauma.

gwarigi@ke.nationmedia.com

It's puzzling the way Parliament sought to give ICC the boot by Gitau Warigi

The Eagle has landed-Kenya and the ICC by John Githongo

ON September 10, Deputy President William Ruto's case at the International Criminal Court starts. In November, President Kenyatta's is due to kick off as well.
All this is pretty unprecedented globally. To have a sitting head of state and his deputy at the Hague as defendants before the successor to Nuremberg Court that tried the Nazis who engineered the Second World War and holocaust is massive in ways we haven't fully appreciated. It has and will further shake up Kenya. It is doing the same to the ICC too, which in the Kenyan cases, is facing some of the severest tests in its relatively brief history. History is being made.
The ICC has redefined Kenya's foreign policy totally and turned domestic politics inside out. Immediately after the post-election violence in 2008, Kenyans were clamouring for the ICC to intervene given the horrors that had just taken place.
Accountability, justice, impunity, reconciliation and other such words were the primary fodder of political discourse as we headed into the referendum on the constitution in 2010. Indeed, it can be argued that even among those most strongly opposed to the new constitutional dispensation, the dark looming cloud of the ICC and all its implications, especially the public mood that accompanied it through 2008 into 2010, all served to soften them up to demonstrate their pro-change, reformist credentials at a time when the country's leadership and the messy albeit negotiated coalition arrangement was particularly unsatisfactory to the population.
If it hadn't been for the ICC, perhaps more of the so-called 'watermelons' who pretended to support the new constitution while secretly being opposed to it, would have come out into the open with their true position.
As the US and its allies prepare to strike Syria on behalf of a world where the use of weapons of mass destruction constitutes an intolerable escalation, one is reminded of how narratives can flip; how a new memory is reconstructed by elites from the strands of old more powerful narratives.
Note that the Syrian war has lent the ICC added relevance and urgency in the architecture of global accountability and standards of human rights and good governance. Some experts warn that the necessity of these military strikes may also serve to galvanise Arab public opinion against the West in powerful ways despite the unmitigated horror of a leader dropping chemical weapons on his own people - if it is convincingly proved that Bashar Assad pushed the button.
There shall be some 'reasonable people' in the Arab world for whom US interference in the affairs of the Middle East will prove harder to swallow than the hideousness of a chemical attack on fellow Arab civilians. Thus is the world. Parts of the Kenyan population are in just such a trap: caught between our preaching about and, yes, belief in, good governance and accountability; and its realities when brought to bear in our tribalised, politicised and fragmented political economy. Grimly put - 'it hurts like hell when it is my tribesman who is being held accountable'. It hurts so much it leads to some of the most gibbering rationalisations of absurdity possible.
As we walk around these days we know part of the new contrived reality that is being spun with such professionalism and determination means we have to con ourselves. I went through our airport the other day and felt proud to be Kenyan. The place had almost burnt down some weeks ago but in 48 hours it was up and running again. It took me a while before the reminder came: what were we doing letting the place burn down; how come the systems meant to prevent this failed? One cynical Kenyan whispered to me: "It all looks very good but can you imagine the contracts that have been eaten and will be eaten?"
FROM SUSPECTS TO VICTIMS
One of the most brilliant political manipulations we have ever seen took place in the run up to the last polls. It was the transformation of Uhuru and Ruto - who emerged as the primary ICC suspects - into tribal Kingpins on an unprecedented scale on the back of the emotions of victimhood thrown up around the ICC cases. Combined with the carefully cultivated narrative of the 'tyranny of numbers' that lulled the voting population and media into accepting what may have been pre-arranged electoral outcomes that were being feverishly cooked up behind the scenes, the scene was set for the most virulently divisive election in Kenyan history in tribal terms at least.
The transformation of UhuRuto from suspects to victims was partly achieved by the fact that Raila Odinga, who had contested the 2007 election with Ruto as his turbo charged key ethnic sidekick, was not on the initial list of ICC suspects. The unspoken narrative too - and far more compelling than all the academic reasoning - was that in the post-election violence Uhuru generally was a political 'first responder' as the Gikuyu, as it were, faced hordes of tribal opponents across Kenya but especially in the Rift Valley. These opponents were ostensibly led by Mr Ruto who had found common cause with Mr Odinga in ODM at the time. Thus is today's alliance between the two previous political 'foes' on whose behalf blood has flowed, rationalised. It is deeply frustrating for some that this argument can't be taken to the ICC, which represents a process into which we walked into with our eyes closed and mouths wide open.
A host of sub-narratives had to be manufactured to complete the transformation of suspects into victims and the victims into candidates and the candidates into an administration that 'won' an election and is now running a government. All required large doses of selective amnesia on the part of large sections of the population, which is part of the reason we Kenyans currently continue to mystify ourselves at our ability to apparently believe our own nonsense. The most potent of these narratives were that the ICC was an imperialist anti-African tool in the hands of the West intent to continued subjugation of Africans. A concerted and well-articulated campaign along these lines has gathered a genuine head of steam at the African Union. It was conveniently forgotten that the ICC was the best friend of millions in 2008 and 2009. When Judge Philip Waki handed over his 'envelope' to Kofi Annan, the country was gripped by the kind of excitement that overcomes people watching a cliff hanger at the end of a Mexican soap. The other narrative, though, was that the ICC cases were false anyway: manufactured by 'NGOs' who had coached individuals to bear false witness together with other derisively dismissed 'civil societies'. Again it was forgotten that in the worst days during and after the PEV, it was these 'civil societies' who were out in the IDP camps with victims; rolling out massive peace-building and reconciliation programmes etc.
These new narratives are being disseminated most vehemently by those who bristled with venom and anger immediately after the post-election violence, against those they now defend so vigorously. There are those too, mainly in the business community both local and international, for whom all this 'talk about good governance, accountability, rights and "hulabaloo" about impunity is simply bad for business and doesn't take into sufficient account 'African realities'. Then there are those who argue that the current situation is preordained - God's work - and therefore beyond comprehension of mere mortals.
OPS! ICC HAS ARRIVED
Yet, a few weeks ago as I travelled I found myself confronted by Kenyans who seemed sincerely surprised that the ICC cases 'have arrived' as it were. The implicit argument here which has been spread with clever language in multiple media spaces - once the elections ended peacefully, Kenyans came together and then need for the ICC process effectively ended - period. But this alchemy is hard for even the remotely honest to countenance. And so a more nuanced argument is being put forth that is more compelling in a realpolitik reading of matters: that the ICC, at the current time, given current circumstances (that are being massaged feverishly to fit immediate political ends), will be fundamentally destabilising to Kenya. This reminds me of a story a wise man told me recently:
There was once a mouse that found a mouse trap in the farmer's house. The mouse rushed out and shouted to the pig, "There's a mouse trap in the house!" The pig responded, "Well, you have a problem". The mouse rushed to the cow and raised the same alarm, "There is a mouse trap in the house!" The cow responded as the pig had - "Your problem not mine". That afternoon a viper's tail was caught in the mouse trap. The snake lay there writhing with rage not dead but unable to escape. The farmer's wife came along and the viper bit her. The farmer came home and found his wife deeply ill from the bite. He called the local witchdoctor who told him, "feed her some pork and she'll recover". So the farmer slaughtered the pig, cooked the pork and fed it to his ailing wife. She died anyway. A huge funeral took place. To feed the multitude the farmer slaughtered the cow and cooked its meat for mourners.
We seem to find ourselves in the same position as that cow. We could face a constitutional crisis with the possibility of the head of state and his deputy out of the country at the same time. These constitutional logistics could turn into a problem for us. Kenya will undoubtedly be brought low by having both its head of state and his deputy endure a global judicial process of such as the ICC. This will be attenuated by the challenges our own judiciary has been facing at home with splits, in-fighting, allegations of corruption and generally a poor state of affairs. The Hague process will be tighter and remind us of what we don't have here.

The Eagle has landed-Kenya and the ICC by John Githongo

Kenya Q&A on the ICC trial of Kenya's Deputy President

The trial of Kenya’s deputy president, William Ruto, and his co-defendant, the radio broadcaster Joshua arap Sang, is scheduled to begin at the International Criminal Court (ICC) on September 10, 2013. A three-judge trial chamber sitting in The Hague will hear the case.
The men face crimes against humanity charges for their alleged roles in murders, deportation or forcible transfer of population, and persecution during Kenya’s 2007-2008 post-election violence. Ruto, who was a member of parliament at the time, will be the first senior Kenyan politician to stand trial for crimes committed during the violence.
“Kenya’s leaders broke their promises to hold national trials, which obliged the ICC to step in as a court of last resort,” said Elizabeth Evenson, senior international justice counsel at Human Rights Watch. “As the trial begins, we should focus on the crimes committed more than five years ago and Kenya’s failure to afford justice to the victims who lost so much.”
The trial of Kenya’s president, Uhuru Kenyatta, in a related but separate case, is due to start at the ICC in November. Ruto and Kenyatta were on opposite sides of the political divide in 2007-2008 and are accused of organizing attacks against one another’s supporters. They were elected in March 2013 on a joint ticket.
The 2007-2008 violence followed what was widely perceived as a rigged presidential election. At least 1,100 people were killed and as many as 650,000 people forced from their homes. Thousands were injured. The scope of sexual violence committed at the time is still not fully known. The ICC stepped in to investigate in 2010 after Kenya’s then-leaders broke repeated promises to hold those responsible to account in national trials.
Ruto, Kenyatta, and Sang are not subject to arrest warrants, having cooperated with the court until now, and have pledged to continue voluntarily appearing before the ICC. The Kenyatta government has repeatedly tried, since taking office in April, to seek the support of regional leaders and political bodies – including the United Nations Security Council and the African Union – to end the ICC’s cases. This undermines its stated commitment to the court.
For additional information about the Kenya cases, please see "Kenya: Q&A on Recent Developments on the International Criminal Court" (April 2013), “Kenya: Q&A on Pre-Trial Hearing in Second ICC Case” (September 2011), “Kenya: Q&A on Pre-Trial Hearing in First ICC Case” (August 2011), “ICC: First Appearance of Kenya Suspects” (April 2011), and “Kenya: Q&A on Kenya and the International Criminal Court” (January 2011).
1.What is the case against Ruto and Sang about? What crimes are they charged with?
2. What is the case against Kenyatta about? What crimes have been charged against him?
3. Why aren’t any of the accused facing arrest warrants?
4. Will Ruto be required to attend the trial in person?
5. What did Human Rights Watch’s research show about the Kenyan post-election violence?
6. Will Kenyan victims be able to participate in the trial?
7. Why did the ICC get involved in Kenya?
8. Apart from the ICC process, have victims and their families had access to justice in Kenya for crimes committed during the post-election violence?
9. Does the fact that the Kenyan people elected Kenyatta and Ruto as president and deputy president in March 2013 mean they don’t support the ICC process and it should end?
10. The 2013 elections in Kenya were held without violence, even though trials had yet to take place. Doesn’t this show that Kenyans have moved on?
11. At its May 2013 summit, the African Union called for the ICC’s cases to be handled by a “national mechanism” in Kenya. What impact does this have?
12. Some African heads of state charge the ICC with targeting African leaders for prosecution. Is this true?
13. The ICC prosecutor has alleged “unprecedented” levels of witness interference in the ICC’s cases. What can be done to ensure that witnesses are protected from interference or intimidation?
14. Has the ICC prosecutor effectively investigated the case against Ruto and Sang?
15. Are the ICC cases alone enough to bring accountability for the post-election violence?

1.What is the case against Ruto and Sang about? What crimes are they charged with?

William Ruto and Joshua arap Sang are charged with the crimes against humanity of murder, forcible transfer of population or deportation, and persecution, stemming from their alleged involvement in an attack on perceived supporters of former President Mwai Kibaki’s Party of National Unity (PNU).
According to the International Criminal Court (ICC) prosecution, perpetrators destroyed houses and businesses identified as belonging to members of Kikuyu, Kamba, and Kisii ethnic groups thought to be PNU supporters, killing over two hundred people and injuring over a thousand more and forcing hundreds of thousands to flee. Five specific incidents occurring between late December 2007 and mid-January 2008 in Kenya’s Rift Valley form the basis for the charges.
The prosecutor contends that Ruto along with others, and supported by Sang, worked for up to a year before the election to create a network to carry out the plan, and that this network was activated when the election results in favor of Kibaki were announced. The goals of the plan, the prosecutor alleges, were to punish and expel from the Rift Valley people perceived to support the PNU, and to gain power in the province.
Ruto at the time was a member of parliament and a senior member of the Orange Democratic Movement (ODM), the party of Kibaki’s principal challenger, Raila Odinga. Sang was a radio host on the Eldoret-based Kass FM. The prosecutor will seek to prove at trial that Ruto created and supervised the network’s implementation of attacks, while Sang incited and then helped coordinate attacks by disseminating coded messages through his broadcasts.
The defendants are not required to set out their case in advance of trial. The Ruto defense has indicated that it intends to prove that prosecution witnesses colluded with one another and with the support of “international and domestic Kenyan organizations” to fabricate evidence.
The ICC prosecutor had initially sought charges against a third suspect in this case – Henry Kiprono Kosgey, then also a senior ODM member of parliament – but a pre-trial chamber found insufficient evidence to send the case against him to trial.

2. What is the case against Kenyatta about? What crimes have been charged against him?

Uhuru Kenyatta is charged with committing the crimes against humanity of murder, forcible transfer of population or deportation, rape, other inhumane acts, and persecution. The prosecutor will seek to show that Kenyatta enlisted the Mungiki, a criminal gang, to carry out attacks on perceived ODM supporters in and around Nakuru and Naivasha towns during the last week of January 2008. During these attacks, allegedly organized in response to attacks on PNU supporters in other areas of the Rift Valley, the prosecutor alleges that Mungiki and other pro-PNU youth – some transported to the Rift Valley from other parts of Kenya – killed, raped, and injured (including through forced circumcision and penile amputation). They also allegedly looted and destroyed properties and displaced thousands of people.

3. Why aren’t any of the accused facing arrest warrants?

All three defendants in the ICC’s Kenya cases are subject to voluntary summonses to appear.
These may be issued at the ICC in the place of arrest warrants, where the judges consider that a warrant is not necessary to ensure the person’s appearance before the court.
Like an arrest warrant, an ICC summons to appear contains the crimes an individual is alleged to have committed and triggers proceedings that may bring a case to trial. But unlike an arrest warrant, the summons imposes only an obligation on the individual to appear before the court in The Hague; a summons does not impose any obligation on the authorities in Kenya or any other ICC state party to arrest the person. If the accused fails to appear or does not comply with any conditions listed in a summons, the pre-trial chamber may decide to issue an arrest warrant. All the accused have complied with their summons to date.

4. Will Ruto be required to attend the trial in person?

Yes, for the time being. In June 2013, the trial chamber excused Ruto from personally appearing before the court for considerable potions of the trial. The trial chamber by a 2-1 majority found that although ICC defendants have a duty to appear in person, the need to accommodate Ruto’s responsibilities as deputy Kenyan president justified an exception to this rule. The chamber required Ruto to attend certain hearings including the trial’s opening, closing, if victims present their views in person, and the delivery of the judgment.
The decision is not final, however. The trial chamber, by a different majority, granted the prosecution leave to appeal and a decision is still pending from the ICC’s appeals chamber. The appeals chamber decided in August 2013 that Ruto will be required to attend all sessions of the trial until it renders a final decision on the appeal.

5. What did Human Rights Watch’s research show about the Kenyan post-election violence?

In January and February 2008, Human Rights Watch researchers were on the ground documenting the post-election violence as it unfolded. Human Rights Watch conducted more than 200 interviews with victims, witnesses, perpetrators, police, magistrates, diplomats, Kenyan and international nongovernmental organization staff, journalists, lawyers, businesspeople, local government officials, and members of parliament across the country, from all major ethnic groups.
Human Rights Watch documented essentially three patterns of violence. First, members of the Kenyan police forces responded to demonstrations and riots with excessive force in some areas. They fired on unarmed demonstrators and bystanders to break up riots, and to keep people away from demonstrations. In other areas, the police did nothing as mobs committed acts of brutality. The Commission of Inquiry into Post-Election Violence (CIPEV), also known as the Waki Commission, found that of the more than 1,100 people killed during the violence, 405 were shot fatally by police. An additional 557 individuals were injured by police gunfire.
Second, mobilized opposition supporters – especially in the Rift Valley and the informal settlements of Nairobi – attacked those they assumed had voted for Kibaki and his PNU. The victims were predominantly Kikuyu, Kenya’s largest ethnic group, reflecting an ethnic dimension to the violence. Around Eldoret, local ODM mobilizers and other prominent individuals called meetings during the election campaign to urge violence in the event of a Kibaki victory. In the days that followed, attacks were often meticulously organized by local leaders.
Third, Kikuyu militia carried out reprisal attacks on members of ethnic groups seen to be associated with the ODM. In Naivasha and Nakuru in the southern Rift Valley, PNU mobilizers and local businesspeople called meetings, raised funds, and directed youth in their attacks on non-Kikuyus and their homes.
Human Rights Watch has consistently called for those behind the attacks to be held to account, and for investigations to determine the extent of links between the attackers and the national leaderships of the opposition and ruling parties. Human Rights Watch’s research suggested some leaders may have been at least aware of what was happening and done little to stop it. Some may have been more directly involved.

6. Will Kenyan victims be able to participate in the trial?

Yes, although few, if any, will appear in person before the ICC.
Under an innovative system at the ICC, some victims may participate in the case against Ruto and Sang. These are individuals who suffered harm in the specific incidents underlying the charges in the case and they are participating in their own right, rather than exclusively as witnesses called by the prosecution or defense. The victims in the case have a court-appointed lawyer, Wilfred Nderitu, a member of the Kenyan bar, serving as their common legal representative and supported by staff of the ICC’s Office of Public Counsel for Victims.
According to a decision of the trial chamber, apart from key moments in the trial like the opening statements, staff of the Office of Public Counsel for Victims will appear in court on behalf of Nderitu. On behalf of his clients, he may seek permission to question witnesses and introduce evidence. At the request of a victim, via the common legal representative, the judges may also give a victim permission to present his or her views directly to the court, either in person or via video-link.
The court said 327 victims participated in proceedings before the pre-trial chamber. The trial chamber ordered a new system to register victims so they are not required to submit individual applications, as has been the practice of other trial chambers. It is uncertain how many victims will participate in the trial. In June 2013, a letter was sent to the court, purportedly on behalf of 93 victims, seeking to withdraw their participation in light of a loss of confidence in the process. The circumstances under which the letter was sent have not been publicly verified.

7. Why did the ICC get involved in Kenya?

Kenya joined the ICC in 2005. The ICC is a court of last resort, stepping in only where national authorities are unable or unwilling to genuinely prosecute crimes within the court’s jurisdiction. It was on the basis of inaction by the Kenyan authorities to hold those responsible that the ICC opened cases in Kenya.
In 2008, mediators appointed by the African Union, called the Panel of Eminent African Personalities and led by former UN Secretary-General Kofi Annan, helped negotiate an end to the violence. An agreement by the parties put in place the Commission of Inquiry into Post-Election Violence or Waki Commission. The commission found that serious crimes had taken place and recommended establishment of a special tribunal in Kenya to hold those most responsible to account in national trials. Its report contained a strict timeline for setting up the tribunal and putting it to work, which, if breached, would require the mediator – Kofi Annan – to pass a sealed envelope with the names of chief suspects to the International Criminal Court.
In December 2008, Kibaki and Odinga, who became prime minister in the coalition government, agreed to establish a special tribunal to prosecute perpetrators of the post-election violence. Kibaki and Odinga, however, failed to follow through, and did not marshal necessary support in parliament for the tribunal. In what now seems a clear attempt to stall domestic justice efforts, Ruto, among other members of parliament, purported to support the ICC under the rallying cry “Don’t be vague! Let’s go to The Hague!” Legislative efforts to establish the tribunal went nowhere over the course of 2009.
In the absence of national steps toward accountability, and after Annan had handed over the envelope from the Waki Commission in July 2009, the ICC prosecutor announced in November 2009 that he would seek authorization from the pre-trial chamber to open an investigation. In authorizing the prosecutor’s investigation in March 2010, the pre-trial chamber found that there were no relevant national proceedings regarding the types of offenses and high-level individuals likely to be targeted in the ICC investigation.

8. Apart from the ICC process, have victims and their families had access to justice in Kenya for crimes committed during the post-election violence?

No. According to Human Rights Watch’s research, although tremendous pressure from the Kenyan population stirred initial efforts in the aftermath of the violence to bring accountability, slapdash investigations and prosecutions were so hurried that they resulted in acquittals.
Following initial failures, the criminal justice apparatus appeared to lose momentum. Out of thousands of potential cases, Human Rights Watch has confirmed only a handful of convictions for serious crimes related to the 2007-2008 post-election violence, and convictions in only three murder cases. This is in spite of the adoption of a new constitution in 2010 and reforms to the judiciary. The previous government did not show a serious commitment to ensuring fair, transparent and effective investigations of those who organized and financed the violence.
In 2012, the Kenyan Director of Public Prosecutions (DPP) announced that his office would review at least 5,000 cases with a view to prosecuting them ahead of the 2013 elections, but a committee appointed to review the cases said in August 2012 that it was finding it difficult to obtain evidence in most cases. The DPP recently indicated that his office obtained an additional 54 convictions for crimes of sexual violence committed during the post-election violence.
Police officials implicated in crimes have enjoyed impunity, with an acquittal in one case of murder brought against a police officer. This was in spite of the fact that the police officer was caught in footage broadcast on national television shooting two protesters who appeared to be unarmed. Both protesters died.
In many police shooting cases, surviving victims or family members sought to file criminal complaints, but were turned away. The father of two children shot by police, one an 11-year-old girl, told Human Rights Watch:

I went to the police and said “The police killed my child.” They said, “The police don’t kill people.” They refused to write a statement. When I insisted, they said, “If you continue to play around, you could be shot, too.”

The government has refused to pay compensation in successful civil suits brought by victims of police shootings. Victims of police shootings and of sexual violence committed during the post-election violence have filed two constitutional cases in the Kenyan high court seeking to compel the government to address these crimes.
The failure to hold to account those responsible for the 2007-2008 election violence continues a cycle of impunity in Kenya. Perpetrators of political violence in 1992 and 1997 also escaped justice. As a Kalenjin elder told a Human Rights Watch researcher:

We are very good at saying we don’t leave a single stone unturned, but we don’t turn a single stone. Maybe we turn pebbles….Small stones are turned. The big ones, no one dares.

9. Does the fact that the Kenyan people elected Kenyatta and Ruto as president and deputy president in March 2013 mean they don’t support the ICC process and it should end?

The ICC treaty does not recognize immunity from prosecution for officials, and Kenya’s constitution expressly provides that the president is not immune from prosecution for crimes under a treaty to which the country is a party, and which, like the Rome Statute, prohibits such immunity. Cases have been brought in international tribunals against sitting heads of state, including Omar al-Bashir of Sudan, Charles Taylor of Liberia, and Slobodan Milosevic of the former Yugoslavia.
Kenyatta and Ruto campaigned on pledges to continue their cooperation with the ICC, and both restated this pledge following their election. At the same time, however, their campaign rhetoric sought to paint the ICC as a tool of Western imperialism. Since taking office the Kenyatta government has actively courted the support of other African leaders to undermine the ICC (see below). It has also ignored threats against human rights defenders and journalists that seem linked to their perceived association with the ICC
In this context it is unsurprising that views about the ICC process have become increasingly polarized among Kenyans. According to a media report, an unpublished June 2013 poll by South Consulting showed significant continued support for the ICC process – 50 percent of respondents – but this marks a drop from the highest reported level of support in the same poll of 89 percent in June 2011. Another June 2013 survey shows that support for the ICC has dropped even further in Kenya to 39 percent, the first time that this poll, conducted regularly by Ipsos Synovate since October 2010, has recorded support below 50 percent. The ICC process itself has suffered setbacks like the withdrawal of the willingness of some witnesses to testify, including those who have cited security concerns (see below), which may have undermined confidence.
Serious crimes were committed in 2007-2008 and, in the vast majority of cases, those responsible have yet to be held to account. The ICC, while imperfect, is providing a measure of access to justice denied in Kenya.

10. The 2013 elections in Kenya were held without violence, even though trials had yet to take place. Doesn’t this show that Kenyans have moved on?

While the 2013 elections were not marked by the scale of violence witnessed in 2007-2008, they were preceded by inter-communal clashes in parts of Kenya which claimed more than 477 lives and displaced another 118,000 people before the vote. Human Rights Watch research demonstrates that the underlying causes of the 2007-2008 post-election violence in the Rift Valley largely remain unaddressed, in spite of pressure from authorities in some areas to “move on”.
Victims of the 2007-2008 violence told Human Rights Watch that an absence of justice had contributed to tensions before the 2013 elections. One Kikuyu elder said:

I see people who killed my relatives, raped my cousin, destroyed my property. They have not been arrested and tried. They have not apologized for what they did. How do you expect me to just accept that and move on?

Kenya’s impunity crisis is profound. Those responsible for political assassinations under President Jomo Kenyatta’s post-independence regime, and for the use of torture against political opponents and excessive use of force by the security services under President Daniel arap Moi, were not prosecuted. The 2007-2008 election violence was preceded by similar episodes around the 1992 and 1997 elections. Government commissions named names, including prominent politicians, but no one was prosecuted. This entrenched impunity likely encouraged politicians to believe in 2007 that they could get away with virtually anything to achieve their political ends.
Civil society activists interviewed by Human Rights Watch in 2011 could not recall a single case in which a senior politician had been convicted of a serious crime in Kenya, despite an endless stream of allegations of criminal behavior.
Justice is an important right and end in and of itself, but Kenya’s history suggests that the failure to deal head-on with past crimes may only encourage future violence.

11. At its May 2013 summit, the African Union called for the ICC’s cases to be handled by a “national mechanism” in Kenya. What impact does this have?

No legal impact. The African Union (AU), a regional body, does not have standing to challenge the ICC’s jurisdiction in favor of domestic proceedings once an ICC investigation is open. Under Article 19 of the Rome Statute, only the accused, a state that has jurisdiction over the case, or a state that must consent to the court’s jurisdiction, may submit such an “admissibility challenge”. In light of Kenya’s track record on accountability, the AU’s call lacks credibility. Kenya lost an admissibility challenge before the ICC in 2011, when judges could find no evidence that Kenyan authorities were actually investigating any of the six individuals then named in the ICC’s cases.
The Kenyan government has sought to keep up the appearance of cooperation with the ICC despite the prosecutor’s allegations that cooperation has been slow or lacking. But the AU’s call resulted in part from concerted advocacy on the part of Kenyatta’s government to use political bodies to undermine the ICC’s cases. In the run-up to the AU summit, the Kenyan government had also called on the United Nations (UN) Security Council to “terminate” the ICC cases, a power the ICC treaty does not give to the council. Since the summit, the Kenyan government has asked ICC member countries, which meet annually, to convene a special session to consider the AU’s call. This request has been turned down.
The ICC depends on the public support of its member countries and other interested parties to create a climate conducive to its work. These initiatives by Kenyan government officials appear to be designed to have the opposite effect. Other ICC member countries should step up their efforts to insist on Kenya’s full cooperation – in spirit and in letter – with the court.

12. Some African heads of state charge the ICC with targeting African leaders for prosecution. Is this true?

In the context of the May 2013 African Union summit, several African leaders made public criticisms of the ICC for targeting Africans. Some African leaders have previously made the claim that the ICC is targeting Africa, but the extent of comments around this summit reflects a qualitative increase, especially among leaders of ICC states parties. This is likely at least partly attributable to Kenya’s significance in Africa and to “shuttle diplomacy” by Kenyan leaders to secure support at the summit.
While claims that the ICC is targeting African leaders have found traction, they are not factual. The ICC’s cases are all from Africa, but the majority came before the ICC as a result of requests by the African governments of countries where the crimes were committed (Uganda, Democratic Republic of Congo, Central African Republic, Cote d’Ivoire, and Mali). Two other situations – Libya and Darfur, Sudan – were referred by the UN Security Council to the ICC, consistent with the council’s authority to make referrals under article 13 of the Rome Statute. Only with regard to Kenya did the ICC prosecution act entirely on its own initiative, and, as discussed above, only after Kenya failed to take action on justice at home and Annan had handed over the sealed envelope from the Waki Commission.
Although claims that the ICC is targeting Africa are inaccurate, double standards are certainly at work in the operation of international justice. Governments are able to shield their citizens and the citizens of their allies from the ICC’s authority by not joining the ICC or by using their veto power at the UN Security Council to block referrals of situations to the ICC. It is essential that those supportive of justice for serious crimes, including ICC member countries, work to press for accountability regardless of where crimes are committed and call out double standards when states seek to block access to justice.

13. The ICC prosecutor has alleged “unprecedented” levels of witness interference in the ICC’s cases. What can be done to ensure that witnesses are protected from interference or intimidation?

The ICC prosecutor has characterized the scale of interference with witnesses in the Kenya cases as “unprecedented,” referring to pressure on witnesses and their families. Victims participating in the ICC cases in Kenya have consistently highlighted their safety concerns in court through their legal representatives. In the two Kenya cases, publicly available court records suggest that some potential prosecution witnesses have either not confirmed their willingness to testify or have withdrawn their testimony citing security concerns.
The ability of all witnesses – whether for the prosecution or the defense – to appear before the court securely and without fear of reprisal is essential to fair and credible trials. The same is true with regard to the effective exercise of the rights of victims to participate in ICC proceedings. Interfering with witnesses can amount to a crime leading to prosecution under both the ICC treaty and Kenyan law.
The ICC has an obligation to take appropriate measures to protect the well-being and safety of witnesses, victims participating in the proceedings, and others at risk on account of testimony given by witnesses, including, for example, so-called intermediaries assisting the work of the court. Protective measures may range from steps like permitting witnesses to testify in a closed session to keep their identities hidden from the public to relocating witnesses away from security threats. Protective measures can be taken for both prosecution and defense witnesses.
Long delays in relocating ICC witnesses can expose them to risk and delay proceedings, given the need to ensure that protective measures are in place before witness identities are disclosed to other parties. ICC officials have repeatedly stressed the urgent need for additional countries to sign witness relocation agreements with the court. It is also critical that states respond positively to requests for assistance in relocation in order to meet protection needs. The ICC’s new registrar, elected in March, has indicated that the protection, support, and relocation of witnesses will be among his first priorities.
While the ICC has specific obligations for its witnesses, victims, and intermediaries, the Kenyan government has the primary responsibility to protect the safety of all those within its borders. This includes investigating harassment or threats amounting to violations of national law. Kenya’s government should make a public commitment to take steps to help ensure the security of those assisting justice processes and to continue strengthening its national Witness Protection Agency.

14. Has the ICC prosecutor effectively investigated the case against Ruto and Sang?

It will be up to the judges to determine on the basis of the full record before them whether the prosecutor brings forward sufficient evidence to prove Ruto and Sang each guilty beyond a reasonable doubt. The defendants are entitled to the presumption of innocence and full protection of their fair trial rights. The Ruto defense has indicated that it intends to prove that prosecution witnesses colluded with one another and with the support of “international and domestic Kenyan organizations” to fabricate evidence. Again, it will be up to the judges to weigh these claims.
More generally, investigations at the ICC face a number of challenges, including securing state cooperation, providing adequate protection to encourage witnesses to come forward, and collecting evidence linking the actions of high-level accused to crimes carried out by other people. Securing state cooperation and witness protection have been two acute challenges in the Kenyan cases.
Human Rights Watch has been concerned that the Office of the Prosecutor’s investigative methodologies may need strengthening to meet these challenges. There are clear signs that the prosecution is taking steps toward this end, including requesting additional resources from ICC states parties for investigations. Adapting the office’s investigative practices to the court’s operational challenges is no easy task, but it is essential to ensuring that the ICC can deliver effective and meaningful justice. Human Rights Watch continues to urge the prosecutor to identify any needed reforms and calls on states parties and other international partners to support the additional resources and cooperation – including in witness protection – which may be needed to improve the efficacy of the office’s investigations.

15. Are the ICC cases alone enough to bring accountability for the post-election violence?

The ICC cases could make a key contribution to break Kenya’s cycle of impunity for political violence and to afford access to justice for some victims of the 2007-2008 violence. But given the limited number of cases the ICC prosecutor has brought in the Kenya situation, and that those cases relate to specific incidents, in specific locations, and on specific dates, there is a clear need to establish special judicial mechanisms in Kenya to investigate and prosecute additional cases in order to bring full accountability.
There is a pressing need, in particular, to address the role police may have played in the post-election violence. Although the ICC prosecutor had alleged that Kenyatta’s then co-defendants, the former head of public service Francis Muthaura and the former Kenyan police commissioner Mohammed Hussein Ali, had worked together to ensure that the Kenya police did not intervene to stop the attacks in Nakuru and Naivashatowns or to punish those who carried them out, an ICC pre-trial chamber did not find sufficient evidence that the police had participated in the attack. The case against Ali was dropped, and a year later, the ICC prosecutor dropped all charges against Muthaura. The prosecutor continues to allege in the Kenyatta case that police uniforms were distributed to the Mungiki; that the police were instructed not to interfere with the transportation of youth into the Rift Valley to carry out attacks; that the police at times refused to intervene or were slow to respond; and that the police later targeted and killed several Mungiki leaders who had knowledge of the involvement of Kenyatta or other politicians in the planning of the violence.
The ICC prosecutor also initially sought to include in the case against Kenyatta, Ali, and Muthaura charges related to police use of excessive force in Kisumu, a city in the former Nyanza province, and Kibera, an informal settlement in Nairobi. But an ICC pre-trial chamber found that the prosecutor had not brought forward sufficient evidence of a link between the three defendants and police actions. Human Rights Watch had urged the Office of the Prosecutor to continue its investigations of police violence, and, evidence permitting, to reintroduce relevant charges.
Kenya’s judicial system faces a number of challenges in taking up additional cases related to the post-election violence. In November 2012 the Kenyan chief justice announced plans to establish an International Crimes Division in the Kenyan high court. The Kenyan government should ensure broad public consultation on the establishment of the International Crimes Division and on other measures that will be necessary to overcome the systematic weaknesses and blockages that have prevented effective prosecution of the post-election violence. In addition to judges with specialized expertise, this includes prosecutors and investigators properly trained and insulated from political interference and the strengthening of Kenya’s witness protection system.

Kenya Q&A on the ICC trial of Kenya's Deputy President

Season of Madness by Maina Kiai

We are just a few days from the D-Day of September 10 when William Ruto’s case at the ICC for crimes against humanity is expected to start.

And with this, a new season of madness beckons, where truth is cast aside, facts are deemed irrelevant, and an avalanche of lies and propaganda are unleashed.

This was expected, for few issues have been as emotive in recent years as the ICC; and few issues more twisted and manipulated.

Prior to the elections, the overwhelming spin against the ICC was that it was a foreign court, and was being used to deny some leaders an opportunity to rule Kenya.

This, no doubt, had great traction, no matter the fact that it was the Government and Parliament that essentially invited the ICC to intervene in Kenya, after failing to institute a Special Tribunal as agreed with the adoption of the Waki Commission Report. And no matter the fact that under our constitution, the ICC is as much a part of our judicial system as the Supreme Court.

And no matter the fact that Mr Ruto was in support of the ICC before his indictment.

INVITE THE ICC

The spin went on to claim that because all the cases before it are from Africa, then it must be anti-African, again no matter the fact that for Kenya, Uganda, DR Congo, Central African Republic and Cote d’Ivoire, it was the countries themselves that invited the ICC.

This spin is silly. Imagine that your village or estate had been engulfed in a crime spree with residents raped, killed and tortured. But this crime wave also hit other estates and villages across the country. Do we then say that we want no action in our estate or village until other criminals are brought to book?

Then it became the story of the indicted persons as victims, no matter that they can afford the best lawyers money can buy (or is it taxpayers paying for the lawyers and travel and etc?) with no regard for those killed, raped, displaced and tortured. And again, this got traction and suddenly anyone who supports the ICC and is against impunity was declared a traitor! One wonders how standing up for principle and for the weakest of the weak became akin to treason, especially when the Government itself brought in the ICC!

Indeed, one of the most significant dangers to our survival as a nation is the fact that those in power, those with wealth, can do anything and get away with it. They can steal, kill, rape, father kids without regard, be corrupt, and get away with it. But when it comes to the point of actually trying to do something about it, when tribal emotions are brought into play and when some of Britain’s best propagandists are let loose to spin, we seem to lose it.

INNOCENT UNTIL PROVEN GUILTY

We all agree that everyone is innocent until proven guilty and some of the loudest shouting about this comes from the fervent supporters of the indictees. Yet, these same supporters do not seem to believe that innocent until proven guilty should apply to anyone else! For they lie on the blogs, for instance, accusing all manner of people of criminal actions such as witness coaching, even though there has never been any investigation or official complaint about this, and despite the fact that the indictees control the state.  

Now the supporters of the indictees in parliament are reportedly planning to pass a motion to withdraw from the ICC.  This will have an impact on the cases, and while it may prove to be politically popular to some, it will make things harder for the indictees.

Even those countries that have been carefully recalibrating their foreign policy towards Kenya—on the basis of their strategic interests rather than morality--will have few options but to cut loose if non-cooperation becomes official.

But I don’t get it: If indeed the indictees are innocent, why have they been so busy trying to avoid the ICC altogether? They have tried using the African Union; they have gone to the UN Security Council; witnesses have been recanting; and they have delayed the start dates of the trial time and again.

We have clearly not seen the last of the propaganda and spin and we should brace ourselves for more, for a season of madness beckons.

Season of Madness by Maina Kiai

Judiciary and civil service vomiting on our shoes by sustaining eating culture by Maina Kiai

One of the interesting titbits in the standoff between Gladys Shollei and a faction within the Judicial Service Commission (JSC) has been the revelation that each member of the JSC receives Sh80,000 as sitting allowance for every session.

This means that each time JSC convenes with all 12 members present, the Kenyan taxpayer is hit for Sh960,000! If JSC sits at least twice a week—in sub-committee or full sessions to deal with finance, recruitment, court cases etc—that translates to Sh7,680,000 per month, or Sh92,160,000 per year!

Every member who attends two sessions per week takes home Sh640,000 per month, for simply putting buttocks on a chair! One need not speak at the meeting or stay till the end! This is more than what most judges and magistrates make, they who sit day in, day out, listening to cases.

Of these 12 members, seven are public officers getting a regular pay check and for whom serving at the JSC is a logical part of their work!

Make no mistake: There can never be any transformation, reform, efficiency or progress when the underlying systems are as kleptomaniac as this. No number of documents, philosophies or reports can take away the fact that this “eating” can only lead to maintaining status quo.

This fundamental attitude then gives rise to other issues perpetuating corruption: cronyism, nepotism, and patronage. For if you earn an easy Sh700,000 a month simply for sitting, and on top of your other income as a judge, magistrate, lawyer, registrar or retired politician, why not go the whole hog and treat the public purse as an ATM? It is a very thin line to cross.

Hence the utter lack of shame when the JSC approves purchase of a house for Sh350 million when houses in Muthaiga go for Sh150 million.

Or that Supreme Court judges are provided with lunch and breakfast everyday catered by Serena Hotel. Or that a senior judge trades with the Judiciary as a supplier.

Sadly, it is not only the JSC that treats our taxes as personal ATMs. Parliament and the civil service are probably better at this. Now parliamentarians are convening as many sessions as they can so that they can sit and “eat” our taxes.

Thus, for instance, interviews for public positions are treated as separate sessions for each interview so as to maximise on the eating. And it is this urge to sit that motivates parliamentary committees to convene for anything under the sun, at the slightest provocation.

As the joke around town goes, for MPs “checks and balances mean cheques that improve their bank balances.”

For civil servants, the impetus is creating as many cross-ministerial committees, task forces, panels as possible to maximise on allowances and per diems. It is about having as many forums outside the station to get per diems.

There is a former staffer at the Attorney General’s office who was nicknamed “Mr Per Diem” for his efforts to ensure he attended, for the shortest time possible, every meeting of every parastatal that required the presence of the Attorney General. He would go in and sign off, and then leave for yet another parastatal meeting, assured that his allowances were made.

Foreign travel is the icing on the cake for this eating and it no wonder that “study tours,” an area of contention within the JSC, are more common than anything else. For here, our senior public officers beat the richest nations on earth in terms of the amount of per diems they receive.

This gravy train of allowances, for sitting, standing, smiling, and just being, must stop. The system today is not about service but about selfishness.

While taxpayers have been a humble lot, this vomiting on our shoes will have consequences, unless Sarah Serem can stop it.

mkiai2000@yahoo.com

Judiciary and civil service vomiting on our shoes by sustaining eating culture by Maina Kiai