Kenya at The ICC: Those Who Refuse to Learn From History

Back in August 28, 2013 in a piece titled "Finally!" for, I argued that the-then two crimes-against-humanity suspects Uhuru Kenyatta and William Ruto were deliberately prolonging their cases through the use of legal maneuvers and machinations even as they sought to "whittle down the number of victims willing to testify against them allegedly through bribery and intimidation."

I also argued that if Mr. Kenyatta and Mr. Ruto had nothing to hide i.e. had evidence to sustain their claims of innocence, they needn't worry about the venue of the trials. More importantly, I suggested that the two principals should stop obstructing Ms. Bensouda's efforts and acquiesce to her request for (Kenyatta's) phone and financial records during the requisite period. Such a move would demonstrate to a fractured and traumatized country that the allegations of bribery, intimidation and outright disappearances of witnesses are just that -- unfounded and baseless allegations. It would also set the country towards a path of healing and reconciliation.

The foregoing is all moot now.

President Kenyatta's case was withdrawn because the available "evidence had not improved to an extent that President Kenyatta's alleged criminal responsibility could be proved beyond reasonable doubt." Likewise, the cases against Mr. Ruto (and Mr. Sang) were declared as mistrials "due to the troubling incidence of witness interference and intolerable political meddling."

The preceding is a sequence of outcomes that bring into sharp focus the ethical dilemma facing not only the two "free" suspects, but Kenya as a whole:

If a tree falls in the forest and no one is around does it make a sound?

The harsh and inescapable truth regarding Kenya's post-election violence of 2007/2008 that only the twisted can quibble over is that approximately 1,300 innocent Kenyans lost their lives, hundreds of thousands had theirs forever changed and billions (KShs.) in property value was lost -- all as neighbor turned on neighbor.

There is now a palpable and uneasy calm pervading some communities that bore the brunt of the violence because PEV perpetrators, some known, are walking around unafraid of facing any consequences for their actions.

The globe-trotting and ever eloquent President Kenyatta told Kenyans in the "City of Lights" that the country "must be allowed to heal, reconcile and look into the future with hope without being dragged into the past." The country's 4th President went on to offer that "justice is not achieved by doing injustice to another Kenyan. We must get justice but not through a second injustice."

While I don't disagree with the president, the problem with these latest nuggets of wisdom is that they are not rooted in reality given Mr. Kenyatta's leadership of the last 3 years. Since he took office in 2013, there has been a glaring disconnect between the president's towering (and frequent) rhetorical flourishes and the actions/policy decisions of his government. This case is no different.

Memo to Mr. Uhuru Kenyatta and with all due respect:

- The country IS still dealing with its past. - You were "dragged" before The Hague in part BECAUSE of the country's past. - Almost a decade later, massive injustices ARE STILL being visited on the victims of the violence you and your deputy were accused of fomenting and, - I won't even bring up the injustices Kenyans have suffered, since independence, at the hands of fellow Kenyans.

As famously said by Dr. Martin L. King, the arc of the (moral) universe is long but it bends towards justice -- eventually. In the wake of the ruling on DP Ruto's case, Kenyans have some questions to ponder:

- With the ICC virtually neutered, first by losses in both Kenyan cases, then by threats of a walk-out by the rebellious African Union (AU) caucus, are the country's institutions -- executive, legislature and judiciary -- independent and mature enough to withstand the twists, turns and turmoil that are all inherent in the progression towards a just and fair society?

- Does the country have the patience to wait for the universe's moral arc to bend in its favor?

- Will the affected citizens willingly and quietly "accept" the fact that no one has been held accountable for the death, pain and suffering wrought on them and their loved ones; then "move on"?

Far from being "amoral" and given the country's history, there WILL be another conflagration because the main issues that triggered the last bout of violence -- tribal animus, land ownership and historical injustices, real and/or perceived -- are yet to be addressed -- comprehensively and fairly.

Those who refuse to learn from the past are.......