Let us not forget the victims
Kethi Kilonzo: Get this, the ICC is not the enemy of the people.
The discussion of post-election violence has become faceless. The society has forgotten (or wishes to forget) the victims.
During the mayhem there was systematic attack on Kenyans based
on their ethnicity and political leanings. Attackers, organised along
ethnic lines, assembled considerable logistical means and traveled long
distances to burn houses, maim, kill and sexually assault their
occupants because there were of particular ethnic groups and
association.
“Guilty by association” was the guiding force behind
deadly revenge attacks with victims being identified not for what they
did but for their ethnic association.
The free for all was made
possible by the lawlessness stemming from an apparent collapse of State
institutions and forces. The international community with the African
Union taking a lead responded to the post election violence instantly.
From 8th to 10th January 2008 then AU Chairman John Kufuor, then
President of Ghana, visited the country and initiated a mediation
process between the Principals. After he left and with the blessings of
the two Principals, the mediation process was taken over by a three
member panel of eminent African personalities composed of three African
icons: Former UN Secretary General Kofi Annan, former Mozambique
Minister and First Lady Graca Machel and former President of Tanzania
Benjamin Mkapa.
The Principals in the presence of the Panel
launched the Kenya National Dialogue and Reconciliation and agreed on an
Agenda Comprising four main items. The Waki Tribunal and its Report
were the result of Agenda 4. The Waki Tribunal was formed and its
report released under a written Agreement signed by the Principals.
The
Waki Report recommended the creation of a special tribunal with the
power to prosecute crimes committed as a result of PEV. It also
recommended that if the option of a special tribunal failed, a list
consisting of names of the persons bearing the greatest responsibility
for the crimes committed during the PEV is forwarded to the Special
Prosecutor of the ICC.
This report’s findings and recommendations have never been challenged.
The Special Tribunal was never created. The two Principals released
the list prepared by the Waki Commission of persons bearing the greatest
responsibility to the Special Prosecutor of the ICC through the Chair of the Panel, Kofi Annan.
Crime
is a free willed choice. It occurs when the benefits of breaking the
law outweigh the costs. It is prevalent when people pursue
self-interest in the absence of effective punishment.
The ICC
didn’t come to Kenya of its own motion. It was invited to Kenya by our
elected representatives. We chose not to prosecute our own. Choices
have consequences. ICC
is not the first international tribunal at which persons accused of
bearing the greatest responsibility for crimes against international law
have been tried. The Nuremburg and Tokyo tribunals were the first.
They
prosecuted persons who were primarily responsible for the atrocities
committed during the Second World War. The process at the ICC is an embodiment of this principle. Justice for all humanity. As we vigorously debate about the ICC,
and the African Union’s recent resolution on the Kenyan situation,
perhaps we should spare a thought or two for the faceless victims of
PEV. Are they entitled to justice? Have they obtained it.
ICC
is not the enemy. It seeks in its own fashion under international law
to grant faceless and helpless victims their day in court.
Most of them have been denied that platform in their own country.
