28. Of ICC, a foreign dance and domestic ennui

By Kap Kirwok

6th April 2013

There is a complicated foreign tap dance that is breaking new ground in diplomatic jazz. It involves linguistic improvisation in response to an irritating question: How do you deal with two people who are facing charges of high crimes at the International Criminal Court but who have just been elected President and Deputy President in an election largely deemed free and fair?

For Kofi Annan, the former UN chief, you say “I congratulate the winners and would like to pay tribute, once again, to the tremendous patience that the Kenyan people have exercised as they waited for the conclusion of this much anticipated process.” When you use the word ‘winners’ and move quickly to paying tribute to the Kenya people, you leave no doubt in the minds of discerning readers where your discomfort and comfort lies: the winners and the Kenyan people respectively. Only a diplomat of Annan’s caliber could pull that one off!

For David Cameroon, the Prime Minister of the United Kingdom, you start with all the expected and easily swallowed diplomatic niceties that only the Queen’s English is capable, but make sure you insert a little ‘poison bill’ by welcoming ‘the President-elect’s commitment that… the Government of Kenya will continue to meet its international legal obligations.’ Interpretation: we expect you to cooperate with the ICC.

For Barack Obama, the President of the United States, you take the cue from the UK (for a change) but still somehow honour American bluntness by saying “We welcome and wish to underscore the importance of Kenya’s commitment to uphold its international obligations, including those with respect to international justice.” This requires no interpretation despite the use of the phrase ‘international justice’ as a euphemism for the ICC.

One step right, one step left, a quick jump to the middle. That seems to be the new dance. But it is quite hard to syncopate the steps with the beat of this music. Meanwhile, Kenyans yawn. How can a president and his deputy practically uphold the obligations of international justice – in this case attend the trial in person as required by the Rome Statute – and risk creating a dangerous vacuum back in Kenya? When ‘international obligations’ comes face to face with ‘national obligations,’ which one takes primacy? It is a tough spot to be in. Law, they say, was made for man; man was not made for law. And yet law that changes at the whim of man is no law at all.

The phrase ‘international justice’ hides the fact this is ultimately about ‘local justice.’ Can the pain of injustice be assuaged by a competently managed truth, retribution, forgiveness and reconciliation process? Perhaps. Is a faithful and competent implementation of the constitution part of the formula for justice, forgiveness and reconciliation? Some people think so, especially if Agenda IV items of the 2008 National Accord – constitutional, legal and institutional reforms, poverty and inequality, youth unemployment and land reforms – are completed expeditiously. Competent management of devolution will also address historic injustices, including those occasioned by the 2007/08 post-election violence.

Which brings me to the inevitable tussle over power and resources that is already shaping up between the center and the periphery. Officials of the national government will not easily give up their addiction to authority. Meanwhile, county officials, led by elected governors, see themselves as the new bosses deserving of all the usual Kenyan VIP trappings. Enlightened stewardship and example from the presidency will be needed if ‘justice’ is to be done.

Back in 2008, I wrote about our misguided notion of VIP status. I do so again by giving the same two examples. In the US state of Arkansas, the Governor earns a salary of US$87,000 per annum, or about Kshs 730, 000 a month. He has two official vehicles but he will often be seen driving himself in his personal car on weekends. Arkansas, with the same population as Nairobi City, has an economy five times that of Kenya. The Governor of the US state of Maine earns even less – Kshs 600,000 per month. The Governor’s pay has not been raised in 24 years! And yet Maine, whose population is the same as that of Langata Constituency, has an economy twice that of Kenya.

Enlightened stewardship and good example from the presidency will be needed to avoid the excesses of the national government being multiplied forty seven times.

A potential cure for the foreign tap dance and domestic despair on the 2007/08 post-election injustice is a serious demonstration of committed, competent and constitutionally compliant leadership by President Kenyatta, Deputy President Ruto and their teams. If they put the country on the path towards a truly democratic, just and prosperous trajectory, the international community will tap-dance to a different tune. Meanwhile domestic despair will transform into the kind of hope that can assuage any pain of past injustice.

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