COURTESY OF JAVAS ARAFAT BIGAMBO
It is trite law that under international law states ratify or assent to international conventions or treaties in good faith. No state can claim that her ratification of a convention, agreement or declaration is as a result of duress or unorthodox means. It follows then that the adherence to any international instrument is pegged on the principle of Pucta sunt servanda. No country has a right to be involved in the affairs of another otherwise that would amount to abuse of sovereignty. Be it United State of America, Japan or Kenya, international law sees these countries as equals and applies to them in similar manner.
The international community has in history suffered great deal of atrocities, be it racism, terrorism, gender discrimination, apartheid, colonialism, neo- colonialism, genocide, crimes against humanity and many more. It is on this notion that the international community found it necessary to come up with various conventions to counter these atrocities. Raphael Lemkin in coining the term genocide was met with a lot of difficulties as to how the perpetrators of these heinous acts would be punished as justice is given to the victims. The international community therefore set up various tribunals to counter check these acts, the Nuremberg Tribunal was formed and indeed justice was seen to be done. Many of the perpetrators were prosecuted.
Through the years there were many ad hoc tribunals formed to address these atrocities. The Sierra Leone Tribunal, Former Yugoslavia Tribunal and the Rwanda Tribunal were and are still instrumental in curbing these gross violations of human rights. The International Criminal Court (ICC) through the Rome statute was established to prosecute individuals or states or state agencies who commit these atrocities. African states and indeed Kenya having ratified the Rome Statute are not immune to the jurisdiction of the court. It is on this premise that the ICC can at any time intervene in matters that fall within its jurisdiction as long as it is able to prove their commission.
Is ICC a western project? This would be the chicken and egg question; I would sit on the fence when faced with such a quagmire. Reason being that the Western states have always been the ‘big brother’ to African states and therefore dictating whatever they feel deem as long as it serves their interest. The Universal Declaration of Human Rights (UDHR) for instance, was violated by the United States of America by having discrimination laws in their national legislation while preaching against the same vice to the developing countries, further, England and other European countries had colonies in many African states: a clear violation of UDHR. ICC may perhaps be another western project in trying to get a grip of African affairs. There have been no prosecutions of George Bush or Tony Blair or any leader who supported war on terror despite it resulting in the deaths of more 48,644 Afghanistan civilians as at 10 the of August, 2010. This in clear terms is violation of the Rome statute but the ICC has closed its eyes and focused on African affairs. The ICC has not prosecuted any government official from the Democratic Republic of Congo (DRC) because the western states are economically gaining from the vast minerals in that country. The ICC has been blind to the mass killings (genocide), rape and persecutions of innocent citizens because it is muzzled in one way or another by the western powers.
On the flip side however, the African states must not be forgiven for the atrocities they commit to their populous. The government of Zimbabwe has through corruption and bad governance neglected its citizens and caused mass deaths of innocent people, Sudan in the Darfur region, Nigeria in the Delta region, Sierra Leone case and of course Kenya in the post election violence are but a few of the African nations that have negated performance of their obligation in the Rome statute. The ICC has been instrumental in ensuring that the perpetrators of these acts are prosecuted. The ICC has been able to instill fear in the governments of the day and in one way or another prevented the violation of these rights.
Kenya must therefore embrace the wrath of ratifying the Rome statute and accept that it has the teeth to bite when the provisions therein are violated. Kenya ratified the Rome statute in good faith and therefore must accept to be bound by its provisions and let the ICC continue with its work. Kenya did not constitute a local tribunal within the given time and therefore indirectly allowed the ICC to take its course, it is further noted that government through its leadership acquiesced to the presence of the ICC prosecutors and even signed various documents giving it the go head in commencing the process. It is critical to note that the lives and properties of many Kenyans were lost, justice must therefore move in with expediency to ensure that those who organized and instigated the violence face the full force of the law. It will be unfair to the victims of the post election violence to be left in limbo without any assistance from the ICC on the guise of sovereignty and territorial integrity by the Kenyan government. The scales of justice must be seen to balance equally.
In conclusion, Africa Union must accept the mandate of ICC and stop inciting its members from abrogating their duty under the Rome Statute, it must instead ensure that its member states do not commit crimes against humanity and then circumvent on technicalities in an effort to derail the process. Kenyan leaders in one way or another are culpable for what happened after the election and therefore must account to the Kenyan citizens. Impunity must never be allowed when it serves the interests of a few well connected political elite rather all must be punished for whatever wrongs they commit despite their social status. As one judge said, no one is too high to be above the law or too low to be beneath the law.
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