The Nation (Nairobi)

6 January 2012

Kenya: There's a Hidden Hand in Africa's ICC Cases

Debate rages over the increasing number of Africans being prosecuted at the International Criminal Court.

The recent "surrender" of former Ivory Coast President Laurent Gbagbo is the latest in a list of exclusively African cases at The Hague.

Indeed, this has led many in the continent's leadership to call for total withdrawal from obligations under the Rome Statute.

The African Union has invariably backed these sentiments by calling for non-cooperation and deferment of some indictments, notably that of President Omar Al-Bashir of Sudan.

For us in Kenya, these calls are perhaps more relevant, with the ICC's verdict on whether six Kenyan suspects should stand trial being awaited.

I will not delve into the merits or otherwise of the Kenyan cases here, partly because like many others, I consider myself insufficiently knowledgeable about them.

Yet with predictions that even more Africans may be prosecuted at The Hague, it's time Africans went into deep introspection.

Human rights violations aren't exclusive to Africa. A cursory look at the wider Middle East, Chechnya and even Asia reveals a similar pattern.

However, you can predict that none will be prosecuted outside their borders.

While the focus has been on Africa's poor governance to justify ICC intervention, the domain of African culture remains "ignored", yet it could be the major contributor to intervention in African affairs.

Across Africa, political leaders acquire deity-like status. The result is that unless the leaders possess the wisdom of Dr Julius Nyerere or Nelson Mandela, they degenerate into autocrats, indifferent to the fact that public office is a chance to advance the common good.

From Equatorial Guinea to The Gambia and even East Africa, leaders have emerged who think their countries cannot be governed without them.

In Kenya, despite considerable progress toward democracy, the threat remains. Its latest manifestations are in leaders whose major preoccupation seems to be to alienate other tribes for personal gain.

So what is unique about Africa that prefers to prosecute its leadership outside their countries?

The perception we have of our leaders as "super beings" allows for unjust manipulation of public institutions, including elevating them above judicial systems.

It also stimulates a false sense of "ethnic solidarity" in which a leader cannot be tried at home because he or she will compromise judicial institutions long before they commence trials.

This is largely what frustrated attempts to establish a local tribunal in Kenya.

Frustration of local mechanisms is counterproductive as the country is simply exposed to external ridicule associated with failed states.

The African middle class has a singular duty to reorient our culture and power-relations.

Just like Africa can no longer afford bad governance, so must we begin to institutionalise discipline and realign our culture to accept the inevitable bias of justice.

Mr Komolo is an advocate of the High Court and a Swire Scholar at the University of Hong Kong.

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