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Putting behind us all the Controversies and anxiety distrust and cries of foul play, the election process seems to have frustrated most pessimists’ projections of the 2007 post election aftermath replica; at least for the time being.
At the centre of all discussions, predictions and scrutiny of the electoral process both locally and internationally, was that one of the contestants who against all odds emerged victor is actually an inductee of the Hague based International Criminal Court (ICC).
Kenyatta and his running mate William Ruto are facing criminal charges of crimes against humanity which include orchestrating murder, forcible transfer and persecution in the 20007 elections aftermath.
The clearance of the two by the Kenyan High Court last year to run in the concluded elections despite of their ‘unclean hands’ was received with some little bit of stun by the internationally community, yet at home and amongst other African countries it was absolute triumph.
Fascinatingly, loser Odinga, prior to the polls had repeatedly said he would rather face Kenyatta in the ballot and not have his rival blocked by the courts, said he respected the court’s ruling.
Things worsened even further in December 2012 when the Parliament in Nairobi called for withdrawal from the Rome statute which governs the ICC.
The Vice-President, Kalonzo Musyoka, himself a lawyer, toured Africa to seek support for a year’s deferral, to allow time to set up a domestic tribunal that would, by law, kick the ICC off the Ocampo case.
The U.S. prior to the elections warned of “consequences” if Kenyatta was to win, as have several European countries. Because Kenyatta is an ICC indictee, the U.S. and Europe said they might have to limit contact with him, even if he is president.
The ICC which was instituted in 2002 as a Permanent tribunal to prosecute individuals for genocide, war crimes and crimes against humanity, has over the years come under fire, with multiple accusation especially from African countries that the court was a back door by which western powers targeted their political enemies.
The basis of this is allegations that ICC has only concentrated picking suspects for indictment mainly from African countries.
Critiques say that the tribunal never conducts independent investigations while dealing with such cases but depends entirely on allegations medaled by local NGOs.
The unanimous decision to select for presidency one of the tribunals most wanted will without a doubt be a signal of harmony between Kenyans and critics across the continent.
Ever since implication of the ostensible ‘Ocampo four’ and the hullabaloo that followed, the image of ICC in the east African country never remained the same.
Divisions emerged along stances on whether or not the six should be tried locally or by the ICC.
On 26 April, last year the East African Legislative Assembly eventually a passed a resolution calling on the ICC to transfer the cases of the ‘Ocampo Four’ to the East African Court of Justice (EACJ), of which appeal was rejected.
President Yoweri Museveni open bashing of the ICC wrecked the little support remaining in the region. While commenting shortly after the conviction of DRC’s war load Thomas Lubanga, Museveni categorically
stated that to resolve issues in the Great Lakes, the region must be left to handle the residual problems of the Democratic Republic of Congo including managing its own people instead of referring everything to the ICC.
“Uganda has many problems from Amin and Obote but we never referred anyone to the ICC. We must manage our people ourselves because this can be a constituency for trouble. People sent to the ICC have followers. Congo and Rwanda were working very well before this but when that started there was a new outburst,” he said.
The President made another unprecedented statement when he said that Kony the LRA leader and his commanders would instead be brought before “traditional” Ugandan courts – which emphasize apologies and compensation rather than punishment.
“What we have agreed with our people is that they should face traditional justice, which is more compensatory than a retributive system,” he said on a visit to London.
“That is what we have agreed at the request of the local community. They have been mainly tormenting people in one area and it is that community which asked us to use traditional justice”.
In the DRC, the ICC was largely criticized even by American rights crusaders for convicting war lord Thomas Lubanga while leaving out (Kabila’s) government forces who were equally perpetrators of war crimes.
It was accused of insufficient checks and balances on the authority of the prosecutor and judges” and “insufficient protection against politicized prosecutions or other abuses.
The Human Rights Watch (HRW) also reported that the ICC’s prosecutor team took no account of the roles played by the government in the conflict of Uganda, Rwanda or Congo. According to HRW, this led to a flawed investigation, because the ICC did not reach the conclusion of its verdict after considering the governments’ position and actions in the conflict.
At stake is not just its credibility within African nations, but also in other super powers like China, India and Russia which up to now have not signed up to its founding (Rome) statute. America has not ratified it either though it is co-operating quietly.
Being dependent on financial support from world super powers, Kenyatta’s triumph would by no means be a piece of good news, not least to stiffen Japanese and German willingness to continue contributing the largest share of its $100m-plus budget.
However, some hopefuls still believe ICC’s fresh prosecutor Fatou B Bensouda, 51, might have in some way been a popular choice, being of African origin (Gambian Lawyer) in helping dampen criticism that the continent has been singled out for prosecutions while appalling offenders elsewhere have been largely ignored.