Posts Tagged ICC

A president’s hardest task is not to do what is right but to know what is right

“No man who ever held the office of president would congratulate a friend on obtaining it.” 
― John Adams

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Uhuru might not cooperate with the ICC after all, cooperate here might not mean what we think it means, so before we get our underwear in a bunch we need to ask what is really being demanded. I believe Uhuru has yet to say he intends to completely disregard the court proceedings and thus invite a warrant of arrest from the ICC in the mould of the butcher of Darfur; what I think has been requested is that his actual presence at trials be dispensed with given his busy schedule and status, something that is not unreasonable if you ask me.

I’ve been wondering what it would take away from Bensouda to allow Uhuru to use a video link instead of having him sitting there on his hands, wild eyed and pensive in the dock just listening to testimony after testimony when he’s not required to contribute a thing, perhaps for weeks, and as a result demeaning our office of the presidency (the office, not the man; but the man just happens to be in that office regardless of how or by what margin).

I know he was not president when this cases begun, I know he said it was a personal matter, but I also know that we knew (at least those of us with a modicum of sense) that if he became president then things would somewhat change, in fact those who had their eyes open knew that that very leverage a president has in getting some reprieve from the indignities of trial is what drove team UhuRuto to burn the candle at both ends to deliver ‘victory’ to Jubilee.

I am aware that as usual the ordinary mwananichi cannot see beyond tribe and party affiliation, and so the cabal around Uhuru would have us believe that Raila controls the ICC and is to blame for all of this, that’s bullshit, UK and Ruto asked to take the ICC option themselves, I am also aware that supporters of CORD, who number almost half those who voted, might not be ready to accept UK as ‘their’ president and would love to see him squirm in the dock at the ICC, that’s like cutting off our noses to spite our faces, the guy happens to be our Commander in Chief and as such his humiliation is our humiliation as a country and a proud country at that.

Madam Bensouda, I’d suggest that if Uhuru is willing to continue with this trial and that all he asks is not to have to appear in person for every single sitting unless his testimony is required of course, can you please be a little accommodating. What will it take away from the court to use a video link? It will certainly take away less than it will from us as a sovereign country having to watch the public humiliation of their head of state for months on end.

A friend of mine, a lawyer by profession, adds:

“On the whole ICC saga and UK’s appearance at The Hague, he may have some merit in asking the court to be more accommodating. There have been no cases where a sitting president has been tried by an international court, however there are a few cases in a number of jurisdictions where the law grants presidents special protection (South Africa) Nelson Mandela had appointed a Comm. Of Inquiry in a manner that contravened the law, he was called before the High Court to testify. His lawyers tried to prevent him from testifying given his status as President, however he came and testified nevertheless. On appeal before the Constitutional Court, the highest court in the land, the CC stated that where a President is called as a witness, special arrangements are often provided for in the way evidence is given. It adds ‘Courts are supposed to ensure that the status, dignity and efficiency of the OP is protected…at the same time however, the administration of justice cannot be impeded by the court’s desire to ensure that the dignity of the President is safeguarded.’ So we see to aspects of the public interest – respecting the office on the one hand, and not impeding justice on the other. The two must be balanced. The court added this gem ‘Except in exceptional circumstances requiring the President to give evidence, the special dignity and status of the President together with his busy schedule and the importance of his work must be taken into account.’ (USA) In 1991 then Governor Bill Clinton propositioned one Ms. Jones, four years later she sued President Clinton for sexual harassment. Merits aside, the Supreme Court, on appeal, stated the following: ‘The testimony of the President may be taken at the White House to accommodate his busy schedule, and that if a trial is held, there would be no necessity for the President to attend, though he could elect to do so.’ The court added that while the President can be tried, ‘High respect is owed to his office…’ When a president testifies, respect for the office, the need to reserve his dignity, and an understanding of the implications of his busy schedule must be carefully considered. (Germany) The German Civil Procedure Codes explicitly state that a President need not attend court in person and may give testimony at home. He may also refuse to give evidence were it to be detrimental to the Federal Republic of Germany or a German State. Those three jurisdictions are what I can find and recall from administrative law. They can be distinguished in some ways. One, this isn’t the ordinary judicial body of a state, it’s an international court. Two, the nature of the crimes may be the ‘exceptional case’ the South African court spoke of and thus are more grievous offences as compared to Mandela’s wrong COI appointment or Clinton’s pre-Lewinsky philandering. My personal opinion is that the ICC has failed to be more accommodating, it is still bound by principles of International Law – of which include the principles created by the courts of states such as South Africa, the USA and Germany. The court has failed to accord even an inkling of respect, dignity and accommodation to Kenyatta – they could have reached a balance of the two aforementioned interests by even sitting in Arusha. UK must be tried for these offences, that I fully advocate for, however, I’m of the view that the Trial Chamber and the OTP should reconsider their stance on how Kenyatta will testify.  “

“In my country, we go to prison first and then become President.”
— Nelson Mandela

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Historical injustices: Let’s simply bury our heads in the sand and hope they will all just go away:

“If you are neutral in situations of injustice, you have chosen the side of the oppressor. If an elephant has its foot on the tail of a mouse and you say that you are neutral, the mouse will not appreciate your neutrality.”
Bishop Desmond Tutu

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The joke is on us:

So Kibunja (Mzalendo indeed!) has cautioned politicians against discussing historical injustices as the campaigns heat up; saying “Such statements are tantamount to incitement”

Is that so? Should all those people who fought against past injustices and triumphed have followed your narrow thinking where would we be? Should Moses not have questioned the servitude of Israelites to Pharaoh? Should Abraham Lincoln have closed his eyes to the brutal history of slavery? Should Martin Luther King not have brought up the injustice of institutionalized racism? Should Mandela have never endured those three decades behind bars because his statements prior to his sentencing were “tantamount to incitement”?

Would you, Mzalendo, have this job had not courageous men and women such as Maathai, Muite, Leakey, Raila, Imanyara, Murungi, Orengo, Matiba, Rubia, Shikuku, Muliro, Karua, etc, not questioned the past injustices of the KANU one party system under Moi?

PS. For the record, anyone who thinks they have a share in one wealthy individual’s property because he happens to be from the same ethnic stock as them should slap themselves in the face.

When I question how Raila acquired the molasses plant, I’m not questioning all Luos.

When I well up with anger at Moi continuing to process tea at Kaptagich in the middle of the Mau forest, I don’t hold all Kalenjins responsible for this destruction of our ecosystem, I do not for a minute believe profits from this factory have been enjoyed beyond the immediate family of the owner.

When I am baffled at how the Kenyattas came to, allegedy, own so much land, I’m not counting the half an acre my friend Mborogonyo toiled to buy in Molo as being part of the Kenyatta’s holdings, I do not think Mama Ngina has listed Mborogonyo in her will just because he was born in Gatundu.

For how long will poor people fight each other over things they don’t own? Why do you allow yourself to be provoked by questions that have been asked of an individual who, by dint of accident, just so happens to share a language with you and nothing more? Do you see the folly that you would even make enemies of lifelong friends for the sake of a wealthy ruling class? One that doesn’t know you personally and wouldn’t lose any sleep if you and your family were swallowed by a hole in the ground.

Open your eyes.

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Unanswered Questions: Why I find it hard to simply board the PK bandwagon

One of the reasons people hate politics is that truth is rarely a politician’s objective. Election and power are.
Cal Thomas

I’m not about to just join the Peter Kenneth hype train and here’s why:
1. I’m not buying that: “supporting PK is a move away from tribal politics” claptrap. Just because PK is biracial and has no indigenous sounding name doesn’t mean he has no tribal roots; otherwise then why would he have represented only Gatanga and not anywhere else? If we really want to move away from tribe how about a minority like a Njemp or even a Shakeel. In fact it might seem like a good idea now to be “Kenneth” but let PK look around and he’ll notice Esther Passaris was forced to use “Muthoni” (and I understand Shebesh is also going the same route calling herself Wambui), to try and connect with a “core” constituency that doesn’t appreciate abstract association. Let the self-appointed social media aficionados in Kenya fool PK that resonating with their deceptive online personas counts for much, but I can tell him for free it does not.
2. I want to know what PK is worth. It is not clear to me how he made his money, money which seems to be of a quantity not to be sneezed at if running a secretariat, constant TV ads and two helicopters is anything to go by. If this money is being given to him by some wealthy benefactors then I would like to know what interest they have in him winning the presidency; the wealthy do not get wealthy by giving away free money.
3. I am very interested in knowing what happened at Kenya Re and in fact the means by which PK came to be at its helm, and what difference this made to the corporations value in comparison to PK’s wealth when he walked away from the smouldering ruins.
4. I want to understand what kind of relationship PK had with a certain former Head of the Civil Service and what was in it for both, especially considering their age difference. You see many years ago, while loitering the roads of my boondocks, I happened to see PK personally driving his grey 4.6HSE in the direction of the Civil head’s home, and that was way before he was MP and I only recognized him due to his role at KFF.
5. Speaking of KFF, where were PK’s fabled management skills during his tenure there? Looking far far back I only see that complete ineptitude has been the hallmark of Kenyan football management since siku za jadi, so much so that our KPL was recently voted the worst league on earth.
6. Then regarding the agitation for multi-party democracy: Where was PK when the bearded sisters, young turks, Wangari Maathai, Muites, Raila, Imanyara, Shikuku, Matiba, Rubia, Jaramogi, Karua, Orengo, Muliro, etc were fighting against the one party KANU regime? This absence alone makes me find it hard to stomach the likes of Kalonzo, Ruto and Jirongo who were in bed with KANU while the protagonists of the second liberation dug in in the trenches and fox holes facing the brutal ancien regime. How will PK own a liberation he was absent from and perhaps cowered from supporting?
7. Managing a CDF fund well, while a good thing, hardly begins to scratch the surface when it comes to executive power as wielded by a president. In fact does managing a CDF exceptionally prove one’s credentials to manage an entire country? a position that calls for more than initiating cattle dip programmes etc and forces one to dive into the deep end of such matters like: dealing with internal security matters like the Baragoi rustlers, Mt. Elgon secessionists, Al Shabab, External threats, international criminals, cartels, exploitative powerful countries, terrorism, a tanking global economy and its attendant issues, a budget that doesn’t match the revenue from an already overtaxed populations, a growing poor majority ravaged with disease, hunger and illiteracy? a position that along with the power of being commander in chief makes one the de facto chief negotiator, thick skinned scapegoat, whipping boy, model parent, and the first responder to the ubiquitous and uncongenial cliché “Naomba serikali”?…

Remember that: “If a politician isn’t doing it to his wife , then he’s doing it to his country.”

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RAO: The eternal scapegoat

“A good scapegoat is nearly as welcome as a solution to the problem”

 

In 2007, in the wake of the disputed elections, Ruto was ODM’s most vocal defender at KICC and Uhuru was the first to clinch the ignominious title of an opposition leader defecting to the ruling party. Kalonzo was an opportunist, just as he is today, waiting to benefit from whatever outcome.

Then came PEV and subsequent formation of the coalition, and we had no less than three opportunities to form a local tribunal and we didn’t. RAO, Kibaki and the entire cabinet even once came to parliament to beg members to vote for such a tribunal in vain.

The reason was Ruto, being then in ODM which was not really an equal partner in the coalition, was afraid he would be made the scapegoat. UK probably never thought he could be touched. And so the inevitable happened, Ocampo came calling and now WSR and UK are in the difficult position they are in.

What astounds me is the fact Ruto’s and UK’s supporters and/or tribesmen, even the most learned, take every opportunity to blame RAO for this turn of events, even when we know that our own parliament and the same accused individuals insisted on going the hague route.

It is fine to hate Raila for whatever reason including the fact you only want your “man” in power, but give the devil his due and just admit the hague matter was a poorly calculated move by the gang now operating under the moniker G7.

In any case if anyone stands to benefit, and who fully intends to as the cat was inadvertently let out of the bag by Muthama, then it is Kalonzo –he of the shuttle diplomacy that’s akin to wolves and chickens voting what’s for dinner; he who sacked Mutula from the MoJ the other day for stating clear points of law, and he stood uncondemned. Yet when RAO sacks Balala, a minister who had made it his business to light fires within the ODM boat at every waking opportunity, we get this hue and cry from the G7 brigade.

Let us have an honest discourse: Why is RAO blamed for everything that goes wrong even from choices made by those affected?

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Balala and Mutula had to go. Plain and simple.

Raila said on Wednesday that he felt justified giving Najib Balala the sack because he wasn’t adding value to their party. The PM added that the former Tourism Minister had continuously opposed the Orange Democratic Movement outright and eventually he could no longer stomach Balala’s public attacks on the party.

Najib with Omar Bashir

 

Everyone has a democratic right to speak their mind, for instance you might want to say how much of a total jerk-off your boss is, but you have to whisper that to yourself in your bedroom and not shout it loud at the company staff meeting or to the press. So I really don’t know why anyone expected Raila to keep Balala in cabinet if Balala’s swansong had become “Raila is a dictator”.

Let’s face it, cabinet appointments are political appointments and those are based on loyalty and regional balancing much more than on merit, otherwise Mwakwere and his confused ilk, whose presence in the cabinet is just as bad as Balala’s absence, should be in retirement homes. Equally Mutula has been demoted not because he was not performing well. Just like Ruto was not retained based on his very good record during his stint at the Ministry of higher education.

Back to Balala; he has repeatedly attacked Raila, and ODM in general, as dictatorial and he knew/should have known what the consequences would be. Mutula, who has been equally firm at Ministry of Justice in contrast to his flipflopping party leader, has also been demoted for almost similar reasons. In fact the very same thing would happen, if not worse, to any PNU minister who, for whatever reason, genuine or not, kept attacking Kibaki publicly and for a sustained period of time.

Furthermore, were these events to have happened during the single-party era, perhaps humiliating lashes by a fireside graced by traditional dancers, or involuntary lodgings at Nyati or Nyayo house would most likely have been part of the menu of retribution.

Even Obama had to sack his first in command in Afghanistan, General McChrystal, for disparaging remarks he made about his administration. That is just how power and authority bestowed on public officers for political reasons works.

We must therefore ensure we fully implement the new constitution such that future ministerial appointments are made from professionals outside the realms of politics as opposed to what happens now. I can only hope Wamalwa hasn’t been put in place to stifle said implementation in addition to his foremost, and futile, role of barking at the moon in badmouthing an ICC process that is out of our hands as a country.

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ICC: Wrapping my head around the contradictions….

When virtue is lost, benevolence appears, when benevolence is lost right conduct appears, when right conduct is lost, expedience appears. Expediency is the mere shadow of right and truth; it is the beginning of disorder. ~ Lao Tzu

Help me understand these conflicting reactions and existing conditions in light of PEV and confirmation of charges against four of the Ocamp0 6:
1. GEMA/PNU leaning friends are angry that charges were confirmed against UK and Muthaura, not because they believe in either’s innocence but because “he is our man”
2. URP/RV friends are angry that charges were confirmed against WR and Sang not because they believe in either’s innocence but because “he is our man”, but are happy that Kosgey is off the hook also because “he is our man”
3. Both groups are happy that the main “our man” from the opposing side isn’t off the hook, but yet the main men are in an alliance of shared interests against the “other man” who ultimately be blamed for ICC’s actions.
4. Both camps pray to God to get their men off the hook. The very same God that shivering IDPs pray to for justice everyday.
5. Are all IDPs genuine former landowners/farmers? Reason I ask is if they can identify the land taken from them, shouldn’t the government have the responsibility to resettle them on those very lands and provide security and programs to create cohesion? (or at the least ask those occupying these lands illegally just what kind of lawless land they think can allow one to settle on land that they took by force). Otherwise if the government resettles IDPs in “friendly” areas, doesn’t that vindicate criminals who evicted fellow citizens while also making it the government’s responsibility not to provide security but, rather, to demarcate safe areas based on ethnicity. What good is that for a country seeking cohesion and/or claiming to uphold laws.

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Permutations: ICC, UN Security Council and Kenya’s Grand Coalition

“The only time politicians tell the truth is when they call each other liars”


If you have been surprised by -the master prevaricator- Kalonzo’s bid to insist on going on what appears to be an ill-advised junket to, supposedly, lobby  the UN Security council to grant Kenya (or is it PNU?) a deferral from the ICC process in what seems to be a futile mission (The US and UK will most likely remain adamant in their opposition to such a move, though whether they will actually veto the move rather than simply abstain from or vote against is a moot point), then wonder no more…. It is apparent that the bid to go the route of the UNSC as opposed to simply seeking deferral from the ICC itself is a calcultated move that is based on a game of chances and implications.
You see If the a local court indicted those implicated by Waki/Ocampo 6 then the GoK would have a strong case for deferral at the ICC since they would actually have shown they have started making moves to mete out justice, but such charges would then confirm to the ICC that the six, among others, have a case to answer. On the other hand, if they take the gamble that ICC pre-trial judges will, hopefully, acquit the 6 for lack of enough evidence, then our judiciary would later on argue that a reputable court, which it will be convenient to call the ICC at that point in time, has already cleared the six and hence they can’t be charged again locally (call it a recourse to some form of double jeopardy). Indeed they, read those with the real power, can then go ahead to charge a totally different set of persons (no prizes for guessing who is first on the list).
PS. If the leaked wikileaks cables from Ranneberger have any credibility then I highly doubt that, as a person, Kalonzo would actually like to see Ruto and Uhuru acquited or their case deferred; consider that this is the same man who was trying to get Kibaki out of the way by trying to influence Dubya to prevail on him, Mwai, to step down in his favour based on this, probably misguided, notion that the Central vote would just fall right into his indecisive lap. The very same man was thinking his days in KANU as a Nyayo waterboy guaranteed the Rift Valley was in his back pocket. Opportunism at its worst.
PS. I also doubt the push for the ICC by ODM/Raila is entirely based on a genuine desire to see justice done as opposed to getting a smoother ride in 2012, opportunism at its best. The difference, however, is in the fact that those that now live under the constant fear of joining Charles Taylor in his quarters behind bars at the Hague brought this on themselves; they and their minions, after all, refused to support the formation of a local tribunal on at least two occassions. I also cannot buy this hogwash that Raila has enough influence to dictate to Ocampo the persons to finger and when to name them and even go further and control when judges at the ICC issue summons, that is just plain ridiculous.

This is not checkers, this is a chess endgame being played out….

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