Kenya: The Hague or Local Tribunal

By Wangari Maathai

Former UN Secretary General Kofi Annan and his team of Eminent Persons finally decided to hand over the Waki envelope to the International Criminal Court (ICC) prosecutor Luis Moreno Ocampo.

They did so because they gave up on the willingness of Kenyan political leadership to establish a local tribunal to try the perpetrators of the country’s 2008 post-election violence. Until then they believed, just like I do, that a local tribunal would have provided the better option. The Hague option was their last resort.

Although I have argued for a local tribunal all along, it is increasingly clear that most Kenyans prefer The Hague option. This is because many Kenyans believe that, left to them, the politicians will not arrest and prosecute the perpetrators of the post-election violence because it amounts to arresting and prosecuting themselves.

Kenyans argue that the country has a history of impunity that stretches back to the colonial days. The culture of impunity is so entrenched that perpetrators of serious crimes have always escaped unpunished. For example, those who perpetrated tribal clashes in 1991, 1992 and 1997 have never been punished, and the youth of those days matured to commit the same crimes in 2008.

Such criminals escaped punishment because they were largely in the government.

In recent times, even those responsible for extrajudicial killings of hundreds of youths, or those associated with the infamous “Goldenberg” and “Anglo-leasing” corruption scandals are largely in government and have escaped punishment. As long as the government is perceived to provide cover for such criminals - because they are a part of the same government - the public loses trust in the government’s capacity to arrest and prosecute those who committed the 2008 crimes.

For sure, the Kenya Government can arrest and prosecute the “small fishes” who committed murder, rape, arson and destroyed property. These were mostly neighbours who turned on fellow citizens after being incited and funded. Calling them to account for their crimes while letting the “big fish” off the hook would be a gross misadministration of justice.

Unfortunately for us, those who incited and funded militias are now government ministers, members of parliament and senior civil servants. Quite obviously, they cannot be expected to arrest and prosecute themselves! That is why many Kenyans vouch for the The Hague option as opposed to the local tribunal. 

Kenya does not have leadership that can confront its own demons and deal with them fairly and justly. The current government is both divided and divisive. As we approach the next general elections in 2012, nothing could stop the recurrence of the same mayhem between the same ethnic communities, which still view each other suspiciously, and with much pain, fear and frustration.

If we had the right leadership, a local tribunal would be best. This is because the entire process of trials, judgments and punishment would help Kenya strengthen the judicial system, affirming that it is not a failed state, rekindling faith in systems of justice and providing a chance for truth, justice and reconciliation.

Peaceful co-existence between the different communities will only be realized when justice becomes the defender and fellow citizens realize that crimes against humanity carry penalties, not rewards.   

It would have been valuable for Kenya to experience the administration of justice within the country, so that its citizens can see that they live in a country where law and order are respected and all citizens are subjected to the same law. Carrying out the process within our borders will also send a message that the country will not tolerate impunity - especially from its leaders. It will also show that Kenya will not need The Hague or the international community every time its leaders commit serious crimes.

There is need to develop confidence in ourselves and our institutions to deal with all crimes within our borders. Only if the country were to fail completely, with all its institutions collapsing, should Kenya surrender to international institutions. Such confidence would also nurture a sense of unity and belonging.

Once the country deals with the perpetrators of crimes, the country will have a more conducive environment for truth, healing, reconciliation and restitution.

Professor Wangari Maathai is a Kenyan environmental and political activist. In 2004 she became the first African woman to receive the Nobel Peace Prize.