KENYA: Justice for the victims, and the nation

By Ndung’u Gethenji

Travel across Africa and you will find a common view where justice is concerned: we generally prefer restoration to retribution; especially for crimes whose underlying dynamics endanger the continuity of communal peace.

The Kenyan cases at the ICC, however, have aimed for retribution. The prosecutor defends this approach as necessary for the sake of ending impunity, deterring future political violence, and giving justice to the victims of the post-election abuses.

Leave aside for the moment that the prosecution's evidence mixes the non-existent, the extremely weak and the fraudulently acquired; that the judges have censured the office of the prosecutor; and that the politicisation of the cases since their initiation is now common knowledge.

This approach is damned still further by the questionable assumption that holding individuals accountable for atrocities brings hope, provides closure, strengthens democratic institutions, and promotes community rebuilding. Few, if any, established democracies have relied on that assumption, or taken the prosecutor's route in dealing with past civil wars or political violence. It is not that they prized criminal impunity; rather, they understood that retribution does not begin to address the political dynamics that break civil peace.

In Kenya, the ICC process is removed from the Kenyan politics and social dynamics that produced the violence in the first place. It is delinked from the daily life of communities, in which victims and perpetrators must live side-by-side, since there are no jails large enough to house the many thousands who were liable for violence, theft and the destruction of property.

Indeed, the ICC's distant view of a society emerging from large-scale violent confrontation is a great part of the reason that the Rome Statute gives priority to national processes. These, at least, have a better chance of seeing and acting on the vital context that is the basis of all lasting peace and justice.

In post-conflict countries, like Kenya in 2008, there are almost never clear winners in the showdown. Thank God for that: such victory usually follows genocide or mass murder, where one side is annihilated. Instead of such murderous clarity, millions of Kenyans must find the political accommodation that secures the sanctity, society and continuity of the nation.

That approach is recognised worldwide as a fundamental practice for protecting a fragile peace. The 2004 Report of the UN Secretary-General on ``The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies' asserts that ``we must learn to eschew one-size-fits-all formulas and the importation of foreign models, and, instead, base our support on national assessments, national participation and national needs and aspirations'.  The Secretary-General goes on to support the ICC's existence as a necessary part of the array of approaches to finding justice and peace.

Indeed, even the Rome Statute that established the court left room for the prosecutor to take a nuanced and politically wise course. This is especially the case where the prosecutor, as happened in Kenya, had discretion in taking up the case. Article 53 of the Rome Statute provides that before deciding to initiate an investigation, the Prosecutor should determine whether crimes have been committed; he should also determine whether there are substantial reasons to think that `an investigation would not serve the interests of justice'.

This opens the door for the prosecutor to exercise wisdom by looking beyond the retributive model. He might consider broader conceptions of justice, such as the importance of protecting a fragile peace, and the hard-fought gains of an emerging democracy – or, indeed, the importance of the culture of restorative justice in a given society. These matters are reflected in a survey conducted by Uganda's Refugee Law Project, which showed majority support for amnesty in the case against the brutal Lord's Resistance Army, and opposition in the victim community to the ICC’s intervention.

Unfortunately, in Kenya, the Prosecutor prioritised above all else an abstract, emotive concept of `victim's interest' as the moral basis for the cases. That mantra obscured the profoundly important goal of preventing renewed conflict. This is no theoretical point: over half the countries that have suffered violent civil conflict revert to violence within a decade.

In Kenya, the reconciliation of warring communities gave the country room to realize sweeping constitutional and institutional reforms. Mr Moreno-Ocampo might have been considered these facts when considering whether to bring the cases to the court.

His successor, Fatou Bensouda, should remedy his faults. She should now consider Kenya’s new constitution, the balancing of power between national institutions, and the underlying political reconciliation --- powerfully reflected in the persons of Uhuru Kenyatta and William Ruto --- that sustains this moment of rapid reform. Her conclusion, if she were fair-minded, would be that the cases she inherited are unsustainably weak, and that the victims have a vital interest in being part of a secure democracy. She should opt to call it a day, and let go of the Kenyan situation at the ICC.