Re: USA Africa Dialogue Series - Analysis: Kenyatta escapes the ICC, and shows others how it's done

Mbaku,

Do you still live in Kenya or you are living abroad? I have told you a country where I had lived and worked. 

It is left for you to believe what I have said or not. But it is a fact. 

Prof. Segun Ogungbemi. 

Sent from my iPhone

On Feb 10, 2014, at 15:07, John Mbaku <jmbaku@weber.edu> wrote:

Dear Según:  

Sorry, but I am not familiar with the Kenya you are talking about here. It is not the Kenya that I know. 

On Sun, Feb 9, 2014 at 8:59 AM, Segun Ogungbemi <seguno2013@gmail.com> wrote:

From my little knowledge of Kenya, I think Owino is right by saying that political leaders cannot be brought to justice in Kenya. It will never happen for now. People are not free to express themselves as they like. In a society where one cannot openly challenge those in power and make them accountable to the electorate, you cannot have a judicial system that will dispense justice as it ought to be. 

Kenyans live in fear and anyone who dare the political elite in power does it at his own risk. And that is the truth. 

Segun Ogungbemi. 

Sent from my iPhone

On Feb 7, 2014, at 3:48, Meshack Owino <meshack.owino@yahoo.com> wrote:

Dear Prof. Mbaku,

You say that Uhuru Kenyatta should be accountable to the people of Kenya and not the ICC, but, isn't it a fact that it is the Kenyan people, through their representatives in parliament, that took the post-election violence cases to the ICC? Think about the phrase, "Don't be Vague, Go to the Hague," and where it came from. That phrase was coined by Kenyans' representatives in parliament as they overwhelmingly voted to hand over Kenya's post-election violence cases to the ICC.

What this means is that it is Kenyans who went to the ICC. It has become common for critics to bash the ICC for all sorts of reasons, but, when it comes to the ICC and the Kenyan cases, let us, at the very least, acknowledge one incontrovertible fact: Kenya's post-election violence cases were taken to the ICC by Kenya and Kenyans. It is Kenya that went to the ICC; the ICC never came to Kenya.

Secondly, you are very right when you suggest that African countries should reconstruct and reconstitute their legal and judicial systems to handle the prosecution of cases committed within their borders. That is a good suggestion. However, it is a suggestion that can only work in a few African countries --- perhaps, to some extent, Zambia, Malawi, South Africa, Botswana, Ghana, and a few others, but, it can never work in Kenya. Indeed, it can't work in Gambia, Uganda, Zimbabwe, just to mention a few.

Prof. Mbaku, let us be realistic. Do you think that, short of a revolution, you can take Yoweri Museveni, Yahya Jameh, Robert Mugabe, Paul Kagama, and Uhuru Kenyatta, to name a few, to court in their respective countries, and live to tell the tale? Just tell me, yes or no, Prof. Mbaku.

Indeed, just look at the witnesses in Uhuru Kenyatta's ICC case. Where are they? Answer: dead, hiding, or living in fear. Kenya's banks where Uhuru Kenyatta used to bank his money have "refused" to hand over Uhuru Kenyatta's financial records to the ICC. Guess, why. The telephone companies in Kenya have also been "unable to locate" to Uhuru Kenyatta's telephone records for the period when the post-election violence broke out. Again, your guess as to why is as good as mine.

Therefore, your suggestion about overhauling Kenya's judicial system, good as it is, is nevertheless unrealistic and unworkable for the foreseeable future in Kenya. I am sorry to say it, but that is just as it is. The rich, the wealthy and the powerful will never allow for the creation of a strong and independent judicial system in Kenya capable of prosecuting cases without fear or favor. Your suggestion is unrealistic as far as Kenya is concerned. It won't work in Kenya. Other countries, may be; Kenya, no. Short of a revolution, the rich and powerful will not allow for the overhauling of Kenya's judicial system, and for the establishment of a strong and independent judiciary in Kenya.

Indeed, when you made this very suggestion a few days ago, I responded to you by saying that it was unrealistic because Kenya's history is already littered with cases of assassinations and suspicious deaths --- from that of Pio Gama Pinto to Tom Mboya to JM Kariuki to Dr. Robert Ouko to Alexander Muge, to name just a few --- that have not been resolved to this date. Economic crimes that have cost Kenya billions of shillings in taxpayer money have not ben prosecuted to this date. Victims of assassinations and their families are still waiting to this day for justice for crimes that, mind you, were committed, in some cases, almost fifty years ago!!! Kenya's treasury is still waiting for the return of billions of shillings stolen from it, and for the prosecution of the rich and the powerful who stole the money.

Put simply, there is not a single case -- criminal, economic, or otherwise, for which the powerful, the wealthy, and the rich in Kenya are serving jail-time. None. That is why I think that your prescription for a home-grown judicial system is unrealistic.

Finally, let me say this. The victims and the families of the victims of the post-election violence in Kenya need justice and deserve justice. I don't think they care where justice comes from as long as they get justice.

Telling these victims to wait until Kenya's judicial system is overhauled, reconstituted, and reconstructed for them to get justice in a country that has never seen the prosecution of even one single rich, wealthy, and powerful Kenyan for any crime is like telling them to wait for manna to fall from the sky because the rich, the wealthy and the powerful in Kenya will never allow for the overhauling, reconstitution, and reconstruction of a judicial system capable of prosecuting cases to their logical conclusion.

Meshack Owino.

------------------------ 

____________________
Meshack Owino, Ph.D.,
Associate Professor of History,
Department of History, RT 1319,
Cleveland State University,
2121 Euclid Avenue,
Cleveland, OH 44115,
USA.

Tel. 216-523-7264.
Fax. 216-687-5592.
E-mail Address: meshack.owino@yahoo.com; m.owino@csuohio.edu

From: John Mbaku <jmbaku@weber.edu>
To:"usaafricadialogue@googlegroups.com" <usaafricadialogue@googlegroups.com>
Sent: Thursday, February 6, 2014 3:23 PM
Subject: Re: USA Africa Dialogue Series - Analysis: Kenyatta escapes the ICC, and shows others how it's done

President Kenyatta should be accountable to the people of Kenya and not the ICC. Hence, it is the Kenya legal system that should provide the victims of the post-2007 elections justice and not the ICC. That said, it is true that present Kenya legal and judicial institutions are either unwilling or unable to administer the necessary justice. Nevertheless, the solution to this quagmire should not be the outsourcing of justice to the ICC. Instead, Kenyans (and perhaps, with external assistance--from the AU, and others) should try to reconstruct and reconstitute their domestic legal and judicial system to enhance its ability to effectively and fully undertake the necessary prosecution of individuals accused of crimes committed within the country's borders. It is the constitutionally-mandated function of a government to deliver justice to its citizens and do so in a fair and judicious manner. Outsourcing justice to the ICC, no matter how attractive that option may appear at this point in time, will not serve the long-term interests of Kenyans.

On Thu, Feb 6, 2014 at 9:39 AM, Olu Abejide <mystock@ymail.com> wrote:

’s all over bar the shouting, and a few more tedious court proceedings. Unless something drastic changes, Uhuru Kenyatta will not face trial at the International Criminal Court – and the thousands of victims of Kenya’s 2007/2008 post-election violence will be denied their chance to see justice done.

Wednesday was supposed to be the first day of his trial, in which he would defend himself against charges of indirect complicity in crimes against humanity for his alleged role in inciting, organising and funding the violence. It was also going to be a milestone in international justice: the first time that a sitting head of state faced an international court on charges of this severity.

But Kenyatta didn’t show. He didn’t need to. The prosecution case had already unravelled to such an extent that instead of arguing for and against his innocence, the lawyers present were squabbling about whether the case should go ahead at all. There was one thing they could all agree on, however: with the current collection of evidence, there’s no way that Kenyatta’s guilt can be proved.Read More

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JOHN MUKUM MBAKU, ESQ.
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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

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