Kenyan Government versus International Criminal Court

In the recent days questions have arisen over the government's committment to cooperate withthe International Criminal Court (ICC). Victims of Human Rights Violations that occured after the 2007 general elections are keenly waiting for justice.

However it is not clear, at least for me, Kenya's policy as the ICC continues with investigations. Do we seek restorative, retrubutive or deterence justice? Do we seek a combination of the three aims of the criminal justice system.

Parliament enacted the International Crimes Act, 2008 (domesticating the Rome Statute on the ICC). Section 3 states that the act is binding on the government. Section 4(1) states the provisions of the Rome Statute specified in subsection (2) shall have the force of law in Kenya in relation to the following matters -

1.  the making of requests by the ICC to Kenya for assistance and the method of dealing with those requests;
2.  the conduct of an investigation by the Prosecutor or the ICC;
3. the bringing and determination of proceedings before the ICC;
4.  the enforcement in Kenya of sentences of imprisonment or other measures imposed by the ICC, and any related matters;
5. the making of requests by Kenya to the ICC for assistance and the method of dealing with those requests.

It is clear that as a people we delegated the exercise of our sovereign power to Parliament. Parliament then enacted legislation binding the government to cooperate with the ICC. It is therefore not a matter of guarding our sovereignty, we have already given it up. That is why i emphasize that African states must be carefull never to sign international instruments as a means of appealing to other interests. Before signing international conventions we must consult the people, africans will increasingly be frustrated with their own elected representatives.

The government failed to establish a special tribunal to try post-election related crimes. The Cionstitution of Kenya (Ammendment Bill) 2008, the Constitution of Kenya (Ammendment Bill) 2009 and the Special Tribunal for Kenya Statute, 2009 were defeated at the floor of the house.

Since the victims deserve justice the ICC process must continue albeit with challenges.

The tide of By-Elections: Voters did not spare the rod.

It is now official that Margret Wanjiru, William Kabogo and Gidion Mbuvi are the Members of Parliament elect in Starehe, Juja and Makadara constituencies. The Interim Independent Electoral Commission conducted free and fair elections. I witnessed this as i cast my vote at Juja Road Primary School at 9:30 am.

This should send a warning to all politicians eying the Presidential, Parliamentary and County positions (Senator, Governor and women representatives) that without results Kenyans will shun you.

Our democracy is gradually rising above partisan politics, political might does not count any more. Kenyans now what matters and will vote for candidates who will deliver. The electorate want justice, accountability, security and sustainable development.

Hail voters in Starehe, Juja and Makadara. More to follow in 2012.

Sovereignty: We the people of Kenya.

Our Constitution is a strong declaration of how as Kenyans we desire to conduct our affairs. It has occurred to me that we do not take our sovereignty seriously or simply we do not know its real meaning. The constitution is a sacred agreement and it distinguishes us from all other countries. The government in all affairs must strictly safeguard our sovereignty.

Article 1 begins by vesting all sovereign power on the people of Kenya. The people may exercise their sovereignty directly or through their democratically elected leaders. Since not all people can govern, the sovereign power is delegated to institutions i.e Parliament (National Assembly, Senate and County Legislative Assemblies).

However i believe we are keen on protecting our interests in certain matters on the basis of sovereignty. For instance the row with International Criminal Court (ICC) on Kenya's failure to arrest Sudan President Omar Al- Bashir and in a host of other foreign affairs dealings.

Many Kenyans have in the recent weeks been arrested in Kenya and charged with terrorism charges in Uganda. Are they not Kenyans, whether Muslims or Christians they deserve a fair hearing here in Kenya. If convicted then our courts will pass sentence. It is like a neighbour reporting to you that your child is alleges to have stolen sugar in his house. Instead of investigating the matter, you simply release your child to the neighbour for interrogation and punishment. If my son has stolen i will discipline him, i will use my rod.

An alternative perspective is on the Millennium Development Goals. It is now known that developing countries may never achieve the millennium targets. Part of the reason advanced is that donor funding to achieve these goals has not been forthcoming. I then ask whose goals are they? It is similar to a person setting a goal for you and committing to assist you attain the goal. Only for the goal-setter to fail in the commitment.

If our projects are to be sustainable, we must gradually turn away from wholesome dependence on donor funding. We must utilise the resources we have as a nation to make gradual progress which will be sustainable. The laws for the implementation of the constitution must be drafted by our legislative drafters. The Constitution should teach us to harness and have faith in what we have.

This is the motivation behind Maneno Human Rights, i pray that not a single day will Maneno receive foreign grants.The same should apply to all national projects.

Enjoy your day.

Implementing our Constitution.

Recent developments on the process of implementing the constitution is interesting to analyse.

All of a sudden, politicians are unveiling county governments, the fate of the provincial administration hangs in the balance, we are not sure if Kenya has competent legislative drafters and so on.....

I still reiterate that the implementation process is our core duty as we seek to enjoy living in a democratic state. We must frown against those who violate fundamental rights and freedoms and oppose those who disobey the constitution. In addition our eternal vigilance to safeguard the process must be founded on respecting the rights of others.

When a people decide to be free nothing can stop them.

Is TJRC a sinking ship?

Well i hate to say this but my mother taught me the freedom we get by telling the truth.

Concerning the Kenya's Truth Justice and Reconciliation Commission (TJRC) i doubt whether it will serve its purpose. When the curtains fall on the TJRC will Kenyans say that, it was  a worthwhile investment on building a better nation?

The lack of political will, controversy at the commission's leadership and hiring of victims as staff is the latest indication that the process is headed the wrong way.

I have also read about the conduct of truth commissions in Argentina, Chile, El-Salvador and South Africa and believe me we are far off. One distinctive feature of these commissions is the fact that all controversies surrounding their work were resolved. Concerns raised by the Civil Society organisations were addressed, so as to build confidence in the process. The commissions were impartial and respected by all. The process was all inclusive, victims and alleged perpetrators given an equal opportunity to participate.

We need responsible leadership at the commission. Mere 'looking busy' will not benefit this country. This applies to all public and private institutions. At the end of the day we must seek to contribute to the well being of all KENYANS and AFRICANS in general.

Should victims work for the Truth Justice and Reconciliation Commission?

The Truth Justice and Reconciliation Commission (TJRC) has hired 300 statement takers. 100 of them are victims of past human rights abuses. The reason behind it according to the TJRC is that this is a victim-driven process. Let us discuss whether victims should take such a primary role in the Truth Justice and Reconciliation process.

Recall that the Chairperson is victim number one, since he has indicated in public that he looks forward to have his case heard (remember he is so wealthy he has filed another suit in court- to clear his name). In my view this is the foundation of disaster. Justice requires that all victims are treated equally. There are no classes of victims nor should victims be treated on a priority basis.

One of the core functions of the TJRC under section 6 of the TJRC Act, 2008 (No. 6 of 2008) is- investigate gross violations and abuses of human rights including abductions, disappearances, detentions, torture, sexual violations, murder, extrajudicial killings, ill-treatment and expropriation of property.

Statement taking is the most important stage of the Truth Justice and Reconciliation process. If a victim's statement is not taken, then that violation may never find a place in the hearings or even the final report. In other words this is the entry point for all cases. It therefore means that the Kenyan TJRC has opened up alternative entry points, that of being a Chairperson or a statement taker. Remember that all victims whether rich or poor, young or old, literate or illiterate desire to be heard and hopefully secure redress. However due to resource constraints, not all cases will be heard at the TJRC hearings. Indeed some will get redress, others will appear in the final report and some dismissed for lack of merit.  Statement takers should therefore be professionals, well trained for the work.

Justice must be done and seen manifestly to be done. The question is whether the victims who do not work as statement takers will perceive justice to be done in the present circumstances? I wonder if the case involving the chairperson will be heard first? Won't there be the temptation for 'victim statement takers' to prefer their cases or even add more details just to make sure their cases are heard? Although statement takers will only take statements, is the process open and impartial? Can all Kenyans identify with the process? Is it a process for a few, or for the entire republic? Is the process honest?

These are critical questions that come to my mind. What is your view.

Link to ICC and the Kenya National Commission on Human Rights

International Criminal Court (ICC)

http://www.icc-cpi.int/Menus/ICC?lan=en-GB


Kenya National Commission on Human Rights (KNCHR)

http://www.knchr.org/

What is in our constitution?

Have you been reading the Constitution or did you heap it the garbage after celebrating its promulgation last Friday. The real test particularly for lawyers lies in the way we interprete the constitution in court, chambers and to the general public. This will influence the gains our beloved country will reap from the constitution.

Section 19 of the Sixth Schedule provides that the rules on the enforcement of fundamental rights and freedoms under Section 84 (6) of the former constitution, shall apply under Article 22. The rules shall be applied with the necessary alterations, adaptations, qualifications and exceptions so that they conform with the objective of Article 22.

I t will therefore be intriguing to see whether individuals will utilise the opportunity given by Article 22(1) giving every Kenyan the right to institute court proceedings to claim that a right has been denied, violated or infringed. Lawyers should be at  the fore front of guiding our people.

Post for thought.