An earthquake. That was lawyer Karim Khan’s summary of this week’s announcement from The Hague. The Deputy President’s counsel at the International Criminal Court (ICC) has been blusteringly eloquent, basking in the limelight of victory. The ICC judges declared the proceedings a mistrial and terminated them.
Back home, we have equated the vacation to an acquittal. Our media calls it “great victory.” It is celebration time. A mistrial is the abortion of a trial due to a disturbing procedural flaw. The critical thing is that the trial does not get to a normal conclusion, because of the incurable defect. In the Ruto and Joshua Sang cases, the judges cited “interference with the witnesses” and “intolerable political meddling.”
There were no pointers to the court’s thinking on possible innocence or guilt on the part of the accused. It is dishonest or ignorant – or both – to state as some are doing that the court found the accused people innocent. Put differently, the court simply said, “Let this not be considered a trial. We have no opinion on whether these people have a case to answer or not. This whole thing is irredeemably faulty. We therefore discontinue it and discharge the accused.”
I should have been happy to see a complete acquittal. It is not just because these matters could return. It is rather because the sacred truth about these accusations must forever remain in the province of doubt. The celebratory mood is understandable, nonetheless. Nobody wants the sword of Damocles hanging over their heads forever. The spin that the two were acquitted is also understandable. You want to travel into the future without appearing besmirched. In the coming days, we are going to transform the court decision way beyond the slightest recognition.
And yet Mr. Khan is right. The announcement was an earthquake. In November 1755 a monumental tectonic upheaval rocked Lisbon, Portugal. An estimated 60, 000 people died. The philosopher Voltaire wrote about it in the volume titled Candide. He was overwhelmed by all that was crushed and buried under the ruins. Earthquakes bury precious things – often forever.
Earthquakes bury memory. Memories of structures, people and their property and other sentient beings – all these and more are interred beneath the ruins. In the emerging mood, Kenyans are likely to forget why they went to The Hague. The cycles of violent chaos since 1992, the loss of faith in the electoral commission, the ethnic hate, the souls of the dead, the letdown by a groupthink National Assembly, all this will be buried under the earthquake. Petitions of “Let us forget and move on” are already abroad. The danger with loss of memory resides in the possibility that such history will repeat itself.
Celebration of the perceived victory before the ICC would do well to be couched in modesty. A belligerent “us” versus “them” attitude is likely to fan future conflict. The protagonists might be different, yet the script could be replayed. The air continues to be disturbed with accusations of unnamed people, who allegedly “fixed” the Hague defendants “for political reasons.” From the start, this was simple political spin. Without doubt, there remains good mileage in this spin. It can now be sold in the mould of “They framed us, but we have defeated them.”
The spinoff can only be heightened polarity and tension. Put this together with the perception that both local and international criminal justice forums are impotent vis-à-vis political violence. The risk of repeat violence with different casts is real. It will help a great deal if President Kenyatta and his deputy use their forthcoming rallies for national reconciliation rather than political chest thumping. National reconciliation must itself encompass all Kenyan tribes.
But the ICC earthquake could bury many other things. Other national debates and conversations risk sinking under the impact of the quake. The Eurobond and NYS sagas could rest comfortably under the decibels of celebration, as could the matter of the National Youth Fund. Pushed to the periphery also could be the trouble at Kenya Airways, the troubled sugar sector, the school examinations challenge, unfinished business at the Lands Ministry, the matter of the Panama shell companies and numerous kindred concerns.
Significantly, too, Kenya may very well have buried the ICC. The court has been left with a bad smelly egg on the face, regardless of what it may say for itself. Not having been able to conduct a trial, the court comes across as completely helpless in the face of what it was constituted to be doing. This is the one court that was established to defeat impunity. By saying it is unable to give us a verdict because of “intolerable political meddling,” the ICC fails to justify its continued existence. Cases get here because of political challenges at home. When this court says that it is not any better than municipal courts, it loses its reason of being.
Finally, the defeat of the ICC in this matter has given Jubilee fresh political impetus. Employed carefully and with the necessary sensibility to the plight of the victims and consciousness to ethnic sensibilities, this advantage could give Jubilee a huge head start over the Opposition. Cord, the principal Opposition, will have to reinvent and repackage itself if it is to stem the Jubilee tide. It will need an earthquake of its own. If Cord fails to do something huge and dramatically inspiring, it might be one more casualty of the ICC earthquake, unless Jubilee buries itself in reckless exuberance.