54. The ICC Judges made a sensible climb-down; they could do more!

24th October 2013

By Kap Kirwok

The lesson has yet to be learned – which is a pity. And it is this: ‘Lady Justice’ is not completely blind. She peeps though the blindfold whenever circumstances dictate.   The same goes for the way she balances the scales and wields the sword. It has always been this way; it will always be this way – till kingdom come.

The idealised concept of justice is often depicted in the powerful symbolism of a blindfolded lady holding scales on one hand and the sword in another. It is meant to convey the idea that justice is administered (the sword) after a fair and impartial (the blindfold) assessment (the scales) of competing claims in a case. Its immediate roots are Greco-Roman mythology, but elements of the symbolism are said to go as far back as ancient Egypt where the goddess Maat represented the concepts of justice, truth and harmony.

Interestingly, the emphasis on fairness and impartiality – that is, blindly without regard to regard status, station or circumstance – has tended to be so central that the other symbolism of the ‘scales’  – namely, balance – is lost. The tendency has been to have a view of objectivity and fairness that is often divorced from the surrounding ‘ecology’ of competing claims. But, as the recent ruling of the ICC judges allowing President Uhuru to skip some court sessions attests, it is not all lost: the ‘ecology’, in this case the political context of the case, clearly matters. The judges made a sensible climb-down. They recognised the need to balance the need for ‘blind’ fairness and objectivity in pursuit of justice for the victims, against the new reality where the alleged perpetrator is also constitutionally the ‘guarantor’ of rights of millions of people in terms of public order, peace, unity and prosperity.  He is “strictly excused from continuous presence because of demanding functions of his office and not his status,” said the statement from the Court. Notwithstanding the laughable attempt to differentiate ‘functions of his office’ from his ‘status’, we can confidently say Lady Justice was allowed to peep through the blindfold!

She did not peep enough, in my view. She needs to peep some more, preferably with both eyes! The president and his deputy should be tried in absentia.

Besides the rising insecurity and the threat of Al Shabab, we need the president and his deputy to focus every ounce of their energies, every minute of their waking time on a national threat that is worse than terrorism:  runaway corruption. We need them to focus on this scourge with laser-beam intensity.  There is a direct link between corruption and insecurity, of course.  Fighting corruption will therefore produce positive outcomes for security.

Failure to tackle corruption and ethnic favouritism should be grounds for impeachment of the president, in my view. Corruption is destroying this country. There are far too many heart-breaking stories of destroyed livehoods. I recently heard one such story.  A young couple thought they were lucky when they won a tender to supply and transport various materials – food, drinks, and tents – for the Independent Electoral and Boundaries Commission during the March elections. They borrowed money and used all their savings to mobilise resources for the task. On the appointed days, they did as required and delivered their part of the bargain. Now, seven months down the road, and many frustrating trips to IEBC offices, they are emotionally broken, bankrupt, and far from being paid. The standard response they get is “we have no money”. Lately, they were told “you might have to wait until the corruption cases against IEBC are concluded before you are paid”! They have become collateral damage in the ugly, free-for-all corruption brawls that are rapidly becoming the new normal in the public sector.

Witness the reports of grand corruption schemes in the Ministry of Lands. Behold the dazzling smoke-and-mirrors conducted under the banner of openness and transparency: first, prime land is identified, then ownership illegally transferred; then the transfer is revoked prompting the ‘aggrieved’ party to sue the government for billions of shillings in ‘lost benefits’. Then legal opinion is sought from the government lawyer who promptly advises that it will be cheaper for the government to settle out of court. Money is paid to the chief schemers, who then share it out. This is open theft.  JSC, take note: it is also open theft to pay yourselves illegal and inflated sitting allowances.

The president has made the right noises about fighting corruption. He needs to consistently back it up with tough, high profile action.  He and his deputy need to lead from the front and approach it like a military operation. They cannot do that from The Hague.   Lady Justice must peep some more!

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