Kwendo Opanga
6 November 2009
opinion
Nairobi — Is it not becoming increasingly clear that Kenyans gambled a great deal on their political leadership taking action against the masterminds of the so-called post-election violence and taking responsibility for their action?
Does it not begin to become clear that the political leadership, fronted by President Kibaki and Prime Minister Raila Odinga, fudges the matter of justice for the victims of the poll chaos and the perpetrators at every turn to buy time, seek deals, protect the gangsters in government, and ensure they escape responsibility for their sins of commission and omission?
Does it not begin to appear to you that on this matter, there are issues that have been troubling the principals all along and it is not about the others but themselves? It appears to me that the principals have worried themselves sick over the possibility of their being branded the principal instigators of the poll madness and the mayhem it generated.
The principals are also worried about the fact that those who were fingered by Justice Philip Waki and whose names are now lying in the secret envelope with International Criminal Court prosecutor Luis Moreno Ocampo are their friends, fundraisers and allies.
ICC justice
Worse, the principals dread the possibility of these suspects vowing "to die with them" should they be made to face ICC justice. That is to say that the suspects in the envelope could confidently take up their positions in the dock at The Hague and declare that they would not have done what had the principals not sanctioned it!
The principals dread something else. That if they are the ones who are seen to be handing over the suspects, they will face a serious backlash which could put paid to their political careers and legacies. Then there is the nightmare scenario for them where the communities from which the suspects hail rise up against them.
This explains why, in the hyped lead up to the visit of Ocampo last week, speculation was rife that the reason the man was coming calling was because the principals sought to cut a deal for themselves. There are still many conspiracy theorists who believe the principals have cut a deal even though it is quite clear that Ocampo is making a clear distinction between criminal and political culpability.
Legal freight
In the court of public opinion, this will count for little. In the courts of law, it carries a great deal of legal freight. Ocampo is saying that his court deals with the criminal culpability of individuals and not the political responsibility for the occurrence of the same.
For me, what this boils down to is that at the end of the day, it was always going to be the political worries, sensitivites, sensibilities, calculations, name it, of the principals that was going to carry the day or with which they sought to curry favour or confront Ocampo with.
The devils
In other words, in the matter of the prosecution of the suspects of the poll chaos by The Hague, President Kibaki and Prime Minister Raila Odinga were never going to tell Ocampo, "here, sir, are the devils for neither Kenya nor heaven needs them. Please send them to hell via The Hague".
So Ocampo came over seeking to get the say so of the principals. He was not going to get it. He did not get it. But he will have his men and women if the three judges he appointed yesterday to look into Kenya's case decide that there were crimes committed against humanity and, in this, he will not need the say so of the President and PM.
Just like last June when the Cabinet opted for a Truth Justice and Reconciliation Commission while leaving the door open for Ocampo to come in, the two have left the door open for ICC justice while appearing to reject it. In other words, President and Premier are actually looking for a way of allowing in ICC justice, but do not want to take responsibility for their action.
Their hope is we will understand that they actually did not want the suspects sent to The Hague for very good reasons. Some of us will not understand or refuse to understand. In fact when Ocampo's team arrests the suspects, they will not see issues the way the principals want them to from the dock.
In this regard, I doubt that the President and Premier can claim to have come out of the meeting with Ocampo looking good. On this matter, I doubt that I can report that President and Premier have shown leadership from beginning to end.
They have wavered, waffled and sought to wiggle out of it or wished it could just go away. They could not convince Parliament nor their political parties to back a local process. Fearing a backlash for their friends or allies, they could not back the process in The Hague even as they knew full well they could not stop it. Now they must live with the nightmare of their names popping up at The Hague.
Kwendo Opanga is a media consultant.
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