Re: USA Africa Dialogue Series - Kenyatta at the ICC: Is Justice Deferred, Ju...

Dear Mr. Owino:

Yesterday, I tried to reply to your post using my iPad while sitting in a commercial establishment. Unfortunately, I was unable to complete my reply because of a power interruption. I hope this time I can address all your four points.

First, tribal-based politics is not unique to Kenya. I hope you are not insinuating that Kenyatta's election was illegitimate. Voters, even in the most enlightened democracies, vote for candidates for a lot of reasons, some of which may include ethnic or racial affinity. In the United States, where racial-based politics has been a pervasive part of the country's more than 200 years of existence, a black man was still able to ascend to the highest position in the government despite the fact that members of his "tribe" (I.e., blacks) are in the minority.

Granted, Kenyans, like their counterparts in other countries, may routinely vote for presidential candidates along ethnic lines. However, this does not make the election of any individual illegitimate or render the winning candidate incapable of providing the country with effective governance. After all, when an individual voter in the UK, the United States, or any other more advanced democracy enters the voting booth to vote for a candidate of his or her choice, do we really know the reason why they choose one candidate instead of the other? Could the white (black) voter be voting for a candidate because the candidate is also white (black) or could it be that the voter and the candidate are both graduates of the same university or that they share the same faith or that they share a common heritage? If advanced democracies have been able to overcome these "problems" and develop institutional arrangements that enhance peaceful coexistence, why can't Kenya and other African countries do the same?

Second, Kenya is not the only country in which the legal and judicial system has failed to deliver justice. Many other countries in Africa have failed to deliver justice to citizens whose lives have been terminated by extra-legal killings. The solution to this shameful state of affairs, however, is not to outsource justice to the ICC or some other external organization. That would not solve the problem, which is a manifestation of an anachronistic and dysfunctional legal and judicial system. The solution lies in (i) deepening and institutionalizing democracy; and (ii) reconstructing and reconstituting the legal system to make it more able to deliver justice locally. Delivering justice to its citizens is the responsibility of every sovereign nation. And, Kenya is a sovereign nation, with an international legal identity. Its leaders must be judged by and held accountable to, its citizens. Hence, President Kenyatta and others accused of complicity in the post-election violence should be judged by Kenyans and not the ICC. If those responsible for doing so are either unwilling or unable to carry out their constitutionally-mandated functions, it is incumbent upon the people of Kenya to force them to either act or give way to others who would. All this, of course, must be carried out peacefully and according to national laws.

You ask: "is there even one single example of a rich and powerful Kenyan who has ever been held accountable for any crime in Kenya? If so, which one?" Let us assume, just for the sake of this discussion, that no rich and powerful Kenyan has ever been held accountable for crimes committed in Kenya. What is the solution to such a shameful situation? Outsource justice to the ICC and let the latter take over the administration of Kenyan laws? Or, better yet, invite Great Britain to come back and govern Kenya? Of course, not. Kenyans should work to improve their legal and judicial system. After all, countries such as the United States and the UK, which have relatively effective and fully functioning legal systems did not always enjoy such levels of governmental accountability. The citizens of these countries had to work very hard to provide themselves with such effective governing processes. We just celebrated the Rev. Martin Luther King for his contributions to the development of such a system in the United States. The solution to Jim Crow in the United States was not outsourcing but grassroots struggles to improve the functioning of national laws and institutions. This is what is needed in Kenya and other African countries and not blind reliance on the ICC.

Third, under the laws of virtually all democratic countries, an individual is presumed innocent until found guilty by a competent tribunal. My argument here is that the ICC is not such a competent tribunal. The job should be handled by a tribunal in Kenya. Justice is more effectively delivered locally; specifically, where the alleged crimes were committed.

Fourth, I had already raised my objections to outsourcing justice long before the Kenyan cases went to the ICC. See my piece in the Guardian on the trial of Charles Taylor. Nevertheless, it is important to note here that both President Kenyatta and VP Ruto are sitting executives of a sovereign country. None of the earlier cases involved a sitting head-of-state. 

Finally, the fact that Kenyan officials went to the ICC does not change my view that outsourcing justice to the ICC is not a long-term and sustainable solution to the problem of impunity in Africa. Africans must develop the capacity to govern themselves--and this includes being able to deliver justice efficiently and equitably--or risk losing the independence that so many of their fellow citizens fought to achieve. This is true for Kenya.

On Wed, Jan 29, 2014 at 7:24 AM, John Mbaku <jmbaku@weber.edu> wrote:

Dear m. Owino:

Tribal-based politics is not unique to Kenya. I hope you are insinuating that Kenyatta's election was illegitimate. Voters, even in the most enlightened democracies, vote for candidates for a lot of reasons, some of which may include ethnic or racial affinity. In the United States, where racial-based politics has been a pervasive part of the country's more than 200 years of existence, a black man was still able to ascend to the highest position in the government despite the fact that members of his "tribe" (I.e., blacks) are in the minority.

Based on your four points, it appears that Kenya should call the British to return and govern the country because they (Kenyans) are never going to be able to do it themselves.

On Tuesday, January 28, 2014, Meshack Owino <meshack.owino@yahoo.com> wrote:

Let me bring up three or four points on this issue:

i) On the argument that "Kenyans" elected Uhuru Kenyatta as president:

Kenya is a deeply ethnically divided country. It is a well-known fact, sad as it may be, that Kenyans routinely vote for presidential candidates along ethnic lines during election. An analysis of elections in Kenya must therefore take into account the role of ethnicity. I don't want to go into this in detail. I will just leave it there. But I ask you to think about it.

ii) On the issue of home-grown justice:

Let me give a short list of very prominent Kenyans who have been assassinated, and to this date nobody has been held accountable for their deaths:

     Pio Gama Pinto -- 1965

     Paul Mboya -- 1969

    JM Kariuki -- 1975

    Owiti Ongili and Otieno Ambala -- 1986

    Robert Ouko -- 1990

    Odhiambo Mbai -- 2003

This is just a short list of assassinations that have taken place in Kenya since independence. There are countless other Kenyans who have been gunned down in broad daylight, and their murders have not been solved to this date. Others have been hounded into exile, and/or have been arrested and incarcerated on trumped up charges by the powers that be, and their tormentors have never been held to account to this date.

Given the above history of Kenya, can we really expect Kenya to be able to hold the powerful and the rich like Uhuru Kenyatta and William Ruto accountable for anything?

Let me ask the question another way: is there even one single example of a rich and powerful Kenyan who has ever been held accountable for any crime in Kenya? If so, which one?

iii) On the question of the alleged lack of evidence against Uhuru Kenyatta and William Ruto in their cases at the ICC:

If Uhuru Kenyatta and William Ruto are truly innocent of the crimes they are accused of by the ICC, why is it then that most of the witnesses against them have either been shot to death, sometimes in broad daylight; chosen to "withdraw" from the cases; or have all of a sudden developed "memory lapses" and refused to testify against the accused? 

And why would innocent suspects expend so much political, financial, and diplomatic capital campaigning against standing trial for crimes they claim to be innocent of?

iv) On the question of outsourcing the prosecution of African cases to external actors:

This appears to have only started becoming an issue when some big, prominent, powerful Kenyans were charged by the ICC in connection to the post-election violence. The question is why only then, and not before?

Up until the Kenyan cases went to the ICC, Africans did not seem to have any problem with external actors helping to prosecute the Rwanda Genocide cases; the Charles Taylor case; the Bemba case; and so on. Indeed, the majority of the African cases at the ICC were taken there by African leaders themselves. Among some of these cases are of those who prefer to be tried by the ICC to their own judicial systems, for example, Bosco Ntaganda of Congo. And there are many examples like that of Bosco Ntaganda.

Indeed, coming back to the Kenyan post-election violence cases, let us not forget that it was not the ICC that came to Kenya to try the cases as some people might think; it was Kenya that went to the ICC. Kenyan leaders took the cases to the ICC to prosecute. They even coined the phrase, "Don't be Vague, Go to The Hague," to emphasize their determination to have the cases tried by the ICC rather than by their own discredited judicial system. 

That is all.

Meshack Owino.

----------------------

From: John Mbaku <jmbaku@weber.edu>
To:"usaafricadialogue@googlegroups.com" <usaafricadialogue@googlegroups.com>
Cc:"kenyaonline@yahoogroups.com" <kenyaonline@yahoogroups.com>; africa-oped@yahoogroups.com
Sent: Tuesday, January 28, 2014 3:19 PM
Subject: Re: USA Africa Dialogue Series - Kenyatta at the ICC: Is Justice Deferred, Ju...

I have a different take on the issue of the ICC and President Uhuru Kenyatta of Kenya. The people of Kenya elected Uhuru Kenyatta to govern them and he is accountable to them and not to some unelected body in The Hague. If there is to be a trial of President Kenyatta, it should be carried out by the people of Kenya through their legal and judicial systems. If the ICC wants to help improve the system of justice in Kenya, it should help Kenyans develop the necessary legal and judicial mechanisms to hold their leaders and any other individuals accused of crimes accountable. Justice should be delivered locally and not outsourced to some external agency thousands of miles away from where the crimes are alleged to have been committed. 

I know that some supporters of the ICC are likely to argue that Kenya is currently either unwilling or unable to undertake the necessary prosecutions and that the ICC must intervene to prevent injustice. My answer is that we should determine the reasons for the inaction on the part of the Kenyan legal system and cure them rather than outsource the job to external actors, be they the ICC or some other organization such as the UN Security Council.

We, Africans, must assert our independence by developing the capacities to deal effectively and fully with our own problems. 

On Tue, Jan 28, 2014 at 11:47 AM, <MsJoe21St@aol.com> wrote:

Most people will prefer a cerebral approach to a court case and evidence is paramount. Maybe your  visceral " jittery "  is due to the fact that you missed where the ICC admitted that its evidence does not rise to a hill of beans? So why are you smelling rats?

 

 http://www.capitalfm.co.ke/news/2013/12/i-no-longer-have-case-against-uhuru-bensouda/

 

 

In a message dated 1/27/2014 7:00:16 P.M. Eastern Standard Time, mystock@ymail.com writes:

I am getting a little jittery over the repeated delays, postponements and all the backpedalling talk about “false evidence” and “lying witnesses” in the Uhuru Muigai Kenyatta International Criminal court trial. I don’t want to say I smell a rat but I feel like I am getting a whiff. Is the stage being set to let Kenyatta off the ICC hook?

There has been feverish efforts to defer, delay and dismiss Kenyatta’s prosecution as a sitting head of state since January 2012 when the International Criminal Court’s (ICC) Pre-Trial Chamber confirmed charges against him. In May 2013, Kenya’s Ambassador to the U.N. Macharia Kamau filed a 13-page “Confidential” letter with the President of the UN Security Council seeking to take the Kenyatta case out of ICC hands and directing it to relinquish jurisdiction to Kenyan courts. In the same month, Hailemariam Desalegn, the ceremonial prime minister of Ethiopia and rotational chairman of the African Union, went on the warpath accusing the ICC of going on an African safari “race hunting” black African leaders. In June 2013, the ICC delayed Kenyatta’s trial until November 12 having determined Kenyatta’s defense team needs adequate time to prepare for trial. In September 2013, Hailemariam formally demanded that the ICC drop charges against both Kenyatta and Ruto. At the 68th UN General Assembly, Hailemariam hectored that the ICC is undermining the “ability of the Kenyan leaders in discharging their constitutional responsibilities” and that dropping the charges “is very critical to support the peace building and national reconciliation processes in [Kenya].”Read More

--
You received this message because you are subscribed to the "USA-Africa Dialogue Series" moderated by Toyin Falola, University of Texas at Austin.
For current archives, visit http://groups.google.com/group/USAAfricaDialogue
For previous archives, visit http://www.utexas.edu/conferences/africa/ads/index.html
To post to this group, send an email to USAAfricaDialogue@googlegroups.com
To unsubscribe from this group, send an email to USAAfricaDialogue-
unsubscribe@googlegroups.com
---
You received this message because you are subscribed to the Google Groups "USA Africa Dialogue Series" group.
To unsubscribe from this group and stop receiving emails from it, send an email to mailto:usaafricadialogue%2Bunsubscribe@googlegroups.com.
For more options, visit https://groups.google.com/groups/opt_out.

--
You received this message because you are subscribed to the "USA-Africa Dialogue Series" moderated by Toyin Falola, University of Texas at Austin.
For current archives, visit http://groups.google.com/group/USAAfricaDialogue
For previous archives, visit http://www.utexas.edu/conferences/africa/ads/index.html
To post to this group, send an email to USAAfricaDialogue@googlegroups.com
To unsubscribe from this group, send an email to USAAfricaDialogue-
unsubscribe@googlegroups.com
---
You received this message because you are subscribed to the Google Groups "USA Africa Dialogue Series" group.
To unsubscribe from this group and stop receiving emails from it, send an email to mailto:usaafricadialogue%2Bunsubscribe@googlegroups.com.
For more options, visit https://groups.google.com/groups/opt_out.

--

JOHN MUKUM MBAKU, ESQ.
J.D. (Law), Ph.D. (Economics)
Graduate Certificate in Environmental and Natural Resources Law
Nonresident Senior Fellow, The Brookings Institution
Attorney & Counselor at Law (Licensed in Utah)
Presidential Distinguished Professor of Economics & Willard L. Eccles Professor of Economics and John S. Hinckley Fellow
Department of Economics
Weber State University
3807 University Circle
Ogden, UT 84408-3807, USA
(801) 626-7442 Phone
(801) 626-7423 Fax

--
You received this message because you are subscribed to the "USA-Africa Dialogue Series" moderated by Toyin Falola, University of Texas at Austin.
For current archives, visit http://groups.google.com/group/USAAfricaDialogue
For previous archives, visit http://www.utexas.edu/conferences/africa/ads/index.html
To post to this group, send an email to USAAfricaDialogue@googlegroups.com
To unsubscribe from this group, send an email to USAAfricaDialogue-
unsubscribe@googlegroups.com
---
You received this message because you are subscribed to the Google Groups "USA Africa Dialogue Series" group.
To unsubscribe from this group and stop receiving emails from it, send an email to usaafricadialogue+unsubscribe@googlegroups.com.
For more options, visit https://groups.google.com/groups/opt_out.

--

JOHN MUKUM MBAKU, ESQ.
J.D. (Law), Ph.D. (Economics)
Graduate Certificate in Environmental and Natural Resources Law
Nonresident Senior Fellow, The Brookings Institution
Attorney & Counselor at Law (Licensed in Utah)
Presidential Distinguished Professor of Economics & Willard L. Eccles Professor of Economics and John S. Hinckley Fellow
Department of Economics
Weber State University
3807 University Circle
Ogden, UT 84408-3807, USA
(801) 626-7442 Phone
(801) 626-7423 Fax

--

JOHN MUKUM MBAKU, ESQ.
J.D. (Law), Ph.D. (Economics)
Graduate Certificate in Environmental and Natural Resources Law
Nonresident Senior Fellow, The Brookings Institution
Attorney & Counselor at Law (Licensed in Utah)
Presidential Distinguished Professor of Economics & Willard L. Eccles Professor of Economics and John S. Hinckley Fellow
Department of Economics
Weber State University
3807 University Circle
Ogden, UT 84408-3807, USA
(801) 626-7442 Phone
(801) 626-7423 Fax