ICC ruling sets foundation for the trial of Kibaki presidency

By Hassan Omar Hassan
Posted on AjabuAfrica, Saturday, January 28  2012 

Poor Emilio Mwai Kibaki. His ‘recommendation letter’ to the International Criminal Court (ICC) counted for nothing! How dare this Ekaterina Trendafilova and her ilk!

This old man has led us to such national greatness. In fact we are so worried whether there is a statesman of equivalence to succeed him!

The truth is Judge Ekaterina is also human. My guess is that Kenya being a strategic regional power, Judge Ekaterina has too been keen on the Kibaki presidency since 2002.

During my international travels, especially within the purview of the justice and human rights domain, the Kibaki regime is perceived as an abusive dictatorship hinged on ethnic domination and manipulation.

The ethnic overtones that catalysed the 2007 post-election violence came as no surprise to many.

The narrative reads – that Kibaki came to power through an overwhelming democratic victory that inspired the imagination of Africa. Being the Africans we are, it is ‘normal’ in Africa for ‘leaders’ who come to power through popular democratic revolts to renege on their fundamental commitments towards democratic reforms.

The clichÈ reads. That Africa has a different contextual reality that makes impractical the growth of what is perceived as the ‘West’s’ model of governance and democratic practice.

The Kibaki types ascribe their actions to an amorphous and pseudo brand of Pan Africanism. Their unwavering ‘love’ for their countries, Africa and her people.

In advancing this theory, Africa must therefore not ‘copy’ the alien dictates of the exploitative West as it abrogates our customs and traditions. Africa must instead grow its own breed of the so-called ‘African democracy’.

Kibaki’s actions are then justified against those of former President Moi and others from the continent and questions as to which African leader does not appoint trusted lieutenants from his ethnic ilk abound.

Further, the line of argument as to which African leader gives up power or loses an election seeks to legitimise excessive conduct of State or electoral theft.

In summary therefore, the international perception is that Kibaki is a dictator who squandered an excellent opportunity for democratic reforms and growth while perpetuating divisive hegemonic politics that betrays the aspirations of the majority.

It’s difficult to mesmerise people who themselves have lots of tarmac, cement and architectural marvels through the same.

With this backdrop, why will Ekaterina believe Emilio? This is possibly why the ICC judges ‘received’ his letter "with reservations". It does not require a genius to conclude that the ICC ruling implicates Kibaki. Article 61(7) (a) of the Rome Statutes of the ICC provides that charges shall be confirmed when the Pre-Trial Chamber determines "...that there is sufficient evidence and commit the person to a Trial Chamber for trial...".

The Pre-Trial Chamber therefore found "sufficient evidence" and "is satisfied that there are substantial grounds to believe" that Kibaki participated in a meeting with the Mungiki. The central thesis of these meetings is to discharge the burden of organisational policy.

This ruling has set the foundation for the trial of the Kibaki presidency. And time is not on his side! This trial will force a scrutiny of the Kibaki presidency.

Many more breaches, excesses and violations that occurred under his watch will be put on trial on account of direct and/or vicarious liability. Accountability for victims and families of extra-judicial executions and forced disappearances, renditions and other violations.

Or enforcing responsibility for corruption. The situation is not enviable. Apart from useful lessons for Kenya’s next president, this is what happens when you don’t realise that times have changed!

-The writer is a lawyer and former commissioner with the KNCHR

hassomar@yahoo.com

Source: Standard

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