Roger writing the LAWmag

Kenyans Elect Suspected Criminal Top Lawmaker

"The charges have not yet been proven in Court", is the new standard of budding journalists when reporting on the laying of criminal charges against an individual.

In lawyer-talk, it can be like saying "with the greatest of respect" to a judge when what you really mean is: 'this isn't personal but you're totally out to lunch...."

But if that standard of journalism is ever to be tested it is in the case of the World v. Uhuru Muigai Kenyatta. The 51-year old president-elect of Kenya, is also one of the richest men in Kenya .... but he stands indicted by the International Criminal Court ("ICC") for crimes against humanity.

Kenyatta has perfect bloodlines. He is the son of the country's founder, Jomo Kenyatta (1893-1978) and has an American education (Amherst College).

What the International Criminal Court holds against Kenyatta is not just the  commercial crime political misdemeanor of the Watergate type. Kenyatta, and five other politicians are accused of murder, forcible deportation, rape and other sexual violence, persecution and other inhuman acts, all under the international statute for the crimes against humanity.

dawn or dusk in KenyaKenyatta is the richest man in Kenya, heir of a large chain of luxury hotels - if not the only chain of luxury hotels - in Kenya. Forbes estimates his net worth at $500-million.

But politics appears to be his passion if not to some extremes still unproven.

The ICC charges stem from the immediate aftermath of the 2007 election when 1,500 Kenyans were killed. Kenyatta is charged with the secret leadership and financier of many of those death squads designed to intimidate the population as they made or promoted their democratic choices. Anyone associated with the rival Party of National Unity was at the top of the hitlist:

"... the supporting material points to a large number of violent acts committed by the police. In this regard, it is reported that between June and October 2007, the police summarily executed at least five hundred suspected Mungiki members in a government campaign aimed at the suppression of the gang. Moreover, hundreds of men were reportedly tortured and killed by the Government's security forces .... With regard to the period between 27 December 2007 and 28 February 2008, there are many references concerning allegations of excessive use of force, partiality or collaboration with the attackers and deliberate inaction by the police.... the acts of violence were based on ethnicity and political affiliation.... The civilian population was the primary target of the attacks. Indeed, with regard to the initial and retaliatory attacks, it is reported that the attackers targeted business premises and residential areas of various villages, burnt down entire houses, as well as places where people sought refuge. Targets of police violence allegedly included unarmed women, elderly persons, children and teachers... Although the violence initially appeared to be spontaneous, in many cases, the multiple crimes had been organized and planned."1

That is not the script of Terminator IV. Those are the allegations of political life in Kenya circa 2008.

The ICC process has not been without criticism. One British barrister, Courtenay Griffiths, wrote in a letter to the editor of the London-based Telegraph newspaper:

"The ICC did not directly source witnesses for this case, nor has it done so in any other case heard before the court. Instead it outsourced evidence-gathering to local intermediaries. In the Kenya case, these intermediaries happened to be well known associates of Raila Odinga, the current prime minister of Kenya, and Mr Kenyatta’s long-term political opponent."

The ICC, a legitimate court of law, finds itself on the shores of no-man's land: politics. The handful of embroiled African leaders that come under their microscope claim that the court persecutes African political leaders only. In fact, Kenyatta openly used the indictment against him in the 2013 election, which he narrowly won. He suggested to an apparently receptive electorate that he was the martyr of international discrimination against African political leaders. The Kenyans, rather than asking themselves the obviously question: "what are the chances?!",  appeared to have bit in hard, line hook and sinker.

There are so many historical instances of a populist politician with immoral if not criminal ethics rallying the people of an emerging democracy.  In fact, it is a pattern which seems to spell-bind so many of these young democracies; almost as if they lie in wait, ripe for the taking by the next silver-tongued Locke Lamora that can talk and intimidate their way to the presidency.

But Kenyatta did what he had to do. He used the ICC charges in the election to ride his horse to victory. That horse's name? Western Interference.

And he'll try the Henry II defence. In 1170, Henry II remarked aloud as to what knight would rid his kingdom of the Archbishop of Canterbury? Several took him at his word, slipped out of the meeting, rode off and killed the incumbent archibishop Thomas Becket. To his grave, Henry II claimed that he was just musing aloud; he didn't intend for his knights to kill on his words.

Although the charges have not yet been proven in Court, Kenyan governments have been unable to convene any domestic court to look at the very real and not accidental deaths that occurred after the 2007 election, almost as if its the price of doing democracy.

It is not. The ICC only stepped in when the Kenyan judicial system appeared unable to properly look at the crimes against humanity.2

Now there is the possibility that a monster runs their country. Kenyatta may have an alibi or a complete defence to the charges, or the ICC prosecutor may not be able to make the charges stick and yet, still, Kenyatta may still be the man behind the killing machine.

As the ICC stands to sort this all out, the charges are horrible in nature - they represent the legal ghosts of 1,500 real people, all with eyes, souls, dreams, mothers, fathers, children, sons, daughters, brothers and sisters.  Some were tortured. In a true democracy, that is never ignored and the day it is, is the day democracy dies.

With apologies if this sounds patronizing, but this is an African democracy that Canadians, Americans, Germans, English, French and others look at as a bright beacon of hope in an Africa often in turmoil. Kenya has all the right parliamentary institutions; a democracy that the world cannot afford to lose as the steady conversion to the true empowerment of the rights of all men and women to be taken as equal and the protection of the law continues.

Kenyans will wear their roll of the dice as time will out whether President-elect Uhuru Kenyatta is the gentleman bastard the ICC lawyers fret over or, instead, the ICC's first-ever wrongfully accused.

REFERENCES:

  • Griffiths, Courtenay, The International CVriminal Court is Hurting AFrica, The Telegraph Newspaper, July 3, 2012
  • NOTE 1: prosecutor notes as extracted from Situation in the Republic of Kenya, International Criminal Court, March 31, 2010, Pre-TRial Chamber II decision, ICC-01.09
  • York, Geoffrey, As African Democracy Triumphs, African Justice Fails, The Globe and Mail, Toronto, Ontario [Canada], March 11, 2013 [NOTE 2]

Posted in International Law, Law Makers, Politicians
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