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