KENYA'S OBLIGATIONS UNDER INTERNATIONAL LAW

      As a student of international criminal law, I, the researcher sought out to find out the place of international criminal law in Kenya with various questions at the back of my mind. The question as to whether Kenya has an obligation to prosecute international crimes has been answered by the realization that all state parties and signatories to the various international criminal treaties are obliged to do so.

         The burning question from the onset has been whether Kenya has fulfilled her obligations under international criminal law hence the title Kenya's obligations under international criminal law. The researcher was disturbed by several events in the country that moved him to carry out investigations on the country’s commitment to this very crucial calling.

     The events ranging from crimes against humanity committed by powerful individuals every election period to the protection of genocide and war crimes perpetrators and fugitives as alleged by the USA and other states as well as the menace of terrorism and piracy left a big question mark in the researchers mind as to whether Kenya is committed to curb these atrocities or just playing games on her citizens and the international community.

     As documented herein in the previous chapters, the researcher was able to investigate the above allegations from all corners. He remains baffled by the hypocrisy and betrayal of Kenyan leaders in the period after the post election violence.  As seen in the literature review, the Kenyan national assembly refused to establish mechanisms to facilitate the establishment of a local tribunal to prosecute the crimes committed and in fact majority of the members of parliament advocated for the referral of the cases to the ICC with the infamous slogan “don’t be vague, go to The Hague”.

      However, hypocrisy is seen immediately the Waki commission names six individuals as bearing the most responsibility and the country suddenly turns to tribal cocoons with each tribe represented by the six individuals saying they are being unfairly persecuted.

     There was then a futile attempt to refer the cases back to Kenya through a series of petitions through the EAC, AU as well as a shuttle diplomacy that never bore much fruit if any. Recently a petition to the UN Security Council to intervene and have the cases referred back to Kenya was ignored with the UN maintaining it has no power to do so. Now the AU member states have vowed to withdraw from the court if the cases are not referred back. It is now a continent against the world affair with most African states rallying behind Kenya on the notion that the ICC is a foreign court targeting only African leaders and is being used by the powerful western powers to bully and manipulate Africa leaders.

    The two dominant tribes represented by the remaining individuals facing the cases have since joined hands and managed to influence sympathy votes from the rest of the country and now are the heads of government. This clearly shows the reluctance of the leaders to meet the obligations under ICL as hidden under the leaders’ individualism. The constant claims by the ICC prosecutor that the government is interfering with her witnesses and failing to cooperate are a confirmation of the same. With regard to the other crimes, Kenya has been faced with numerous problems which have been occasioned by her unwillingness to commit to her obligations under ICL.

     Africa is a continent in perpetual turmoil. A cursory review of the continent of Africa reveals a troubling catalogue of social maladies traceable to state failure. Some African countries have experienced civil war, military dictatorships, massive human rights violations, and genocide. Others are spiraling toward social disorder, roiled incessantly by corruption, weak and ineffective institutions, ethnic hostilities, and reciprocal tribal hatreds. Kenya is no exception and has faced serious international crimes in the recent past which have put her commitment to meeting her obligations under international criminal law to a test.

     Kenya has faced serious human rights violations in the past, notably at the time of electoral processes. Numerous Kenyan official Commissions' reports1 as well as International Non-Governmental Organizations' (NGO) and Kenyan NGO’s reports have denounced the politically instigated ethnic clashes that occurred at the occasion of the 1992 and 1997 presidential elections. Despite State knowledge of such violations, no one was prosecuted for the massive crimes committed in Kenya. This culture of impunity is undoubtedly one reason for the recurrence of such human rights violations, notably those committed at the occasion of the December 2007 presidential elections. The fight against impunity of the most serious crimes is an important way of preventing further violations. Along this line, State Parties to the International Criminal Court (ICC) Statute have announced that they are “determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes” (Preamble of the ICC Statute).

      However, even with the reemergence of constitutional democracy, human rights violations are trending upwards in Kenya. Elected Kenyan leaders typically use extralegal and often brutal means to quell internal dissensions from disaffected citizens. Human rights violations, corruption, and inequitable distribution of the nation's resources undermine the legitimacy and effectiveness of the central government and often lead to social disequilibrium. State failures provide volatile, anarchic environments in which predatory government officials, opportunistic politicians, and ambitious ethnic chieftains pursue their goals through violent means.

     Before the advent of international criminal prosecutions, the international community expressed vague disquiet about atrocities and massive human rights violations in the continent of Africa. Constrained by concerns for national sovereignty and politics, the world community never seriously attempted to check the excesses of tyrannical and despotic leaders that ruled Africa. An intensely distracted world community rightfully placed more importance on issues like the Cold War and nuclear proliferation, leaving hapless African citizens to bear their fate without international assistance. Hubristic African leaders hid behind the niceties of national sovereignty and flagrantly abused their citizens without fear of reprisals from the international community. Vulnerable, disaffected and oppressed citizens dealt with impunity the best way they knew: through violence in the form of coups, counter-coups, assassinations of leaders, ethnic strife, genocide and civil war. Lately, however, African countries, either on their own, or prodded by the West, have shown an increased capacity and willingness to promote accountability through the legal process.

     It is in this line that Kenya signed and ratified the Rome statute and eventually submitted herself to the processes of the court. The relationship between Kenya and the ICC is an international relationship in the traditional sense. It is rather a devolved relationship.

    At any rate it is a terrible misunderstanding to label the ICC a foreign court; a western tool of oppression as the chair of the Judicial Service Commission of Kenya, Ahmednasir Mohamed, declared recently. Upon ratifying the Rome Statute, Kenya imposed upon herself the inalienable duty to enforce the courts decisions upon her domestic decisions. We could brand the court mediocre, unfair and irrelevant; a western tool for manipulation. But really, we freely signed and ratified the Rome Statute. We imposed this burden upon ourselves willingly, and we have to be men and women of our word; an honest country. Sovereignty cannot be used as an argument against the ICC; as a tool to frustrate compliance. This is misguided. Sovereignty in a modern democratic state refers to autonomy which is subject to checks and balances.

      Back in 1923, the permanent court of international justice said, “the right to entering international treaties is an attribute of sovereignty.” In 2008, the Kenyan parliament requested that the ICC should take charge of the mess created by the post election violence. Consequently in December 2010, the ICC prosecutor requested the Pre-trial chamber to summon six people. Members of Parliament lobbied for the government to suspend any links, cooperation and assistance forthwith. Now there is an ugly diplomatic impasse and the blame game is on.[1]

    The recent conviction of Charles Taylor the former president of Liberia in The Hague at the international criminal court is indicative of the changing boundaries of modern criminal law. Gone are the days when only the local and national laws prevailed, as codified in the penal code. International criminal law now imposes some obligations on states in regard to certain crimes.

    The rule of law can be summarized as the overbearing umbrella and values in criminal law which emerges as a cluster of procedural requirements consistency of laws, general, as distinct to selective application, certain in effect, clear, and prospective rather than retrospective.

    The success of international criminal prosecution and the ability to achieve the stated objectives of reconciliation and deterrence ultimately depend on the support and acceptance by the public whose conduct it seeks to influence. Lack of public support accounts for the disinterest and dismissive attitude towards the activities of international criminal tribunals in Africa. Three factors, namely the nature and practice of the tribunals, location, and contradictions with the African concept of justice, continue to fuel public disenchantment with international criminal prosecutions in Africa.

     February 2009 Summit, the AU Assembly adopted a decision expressing its ‘deep concern’ regarding the indictment (sic) of Al Bashir, and mandating the AU Commission to dispatch a high-level delegation to the UN Security Council to advocate for the deferral of proceedings under article 16.[2] Notwithstanding the AU’s decision, on 4 March 2009, ICC judges confirmed the international arrest warrant for Sudan’s president. On 3 July 2009, at the AU Summit of Heads of State and Government held in Libya, the Sirte Declaration was passed (with South Africa’s full support) which resolved that African states would defy the arrest warrant issued by the ICC for Al Bashir. In particular, this resolution categorically states that member states have refused to co-operate in the arrest and surrender of the Sudanese president. It is believed that the recent discontent with the ICC can be traced to the suggestion that ‘the ICC is a hegemonic tool of Western powers which is targeting or discriminating against Africans because its first cases flow from this continent’. The reluctance to comply with the arrest warrant for Al Bashir is in line with the criticism that the Court’s work is undermining peace efforts or conflict resolution processes. Furthermore, an objection has been voiced that the ICC has deigned to proceed against a sitting head of state of a country that is not a party to the Rome Statute.

    Kenya refused to arrest Al Bashir on 26^th August 2010 when he attended the promulgation of her new constitution. This clearly is a total disregard of her obligations towards the ICC.

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[1] Dr Luis Franceschi, dean, Strathmore Law School.             

[2] Decision on the application by the International Criminal Court (ICC) Prosecutor for the indictment of the President of the Republic of the Sudan Assembly/AU/Dec 21 Addis Ababa 1-3 February 2009

SOCIAL JUSTICE A FAR FETCHED DREAM IN AFRICA

"Social justice" was coined by Jesuit priest Luigi Taparelli in 1840 based on the teaching of st Thomas Aquinas. A socially just society is one that is based on upon the principle of equality and fairness. Such a society both understands and values human rights. The constitution of the ILO affirms that universal and lasting peace can be established only if based on social justice.

The constant protests by the civil society against various issues in Kenya is an attempt at seeking social justice. As a country we will never achieve lasting peace until we pursue social justice. Everyday the government institutions are trampling rights of civilians and suppressing every voice raised to fight for these rights.

If a government will kill to cover its rotten practices, then where will the weak,poor and starving women and children go? Every election period women flock polling stations hoping to change the system, but it just never changes. Men discuss and influence each other ganging up support for the leaders they believe will bring the much needed change. But it never really comes.

How many extrajudicial killings have happened?  How many people have been detained illegally, tortured and eventually killed for things they do not know about without even a chance to defend themselves? Do we really value human rights? What happened to being presumed innocent until proven guilty? What happened to "you cannot be a judge in your own cause"? Whatever happened to fairness and equality? Is anyone even reading this?

WILL THE ICC PROCESS BRING A LASTING SOLUTION TO KENYA?

         I concede that punishing perpetrators of evil is definitively a viable mechanism for combating impunity. In appropriate cases, the criminal process can be deployed to engineer compliance with the law and to deter would-be perpetrators of evil. I argue, however, that the objectives of using criminal prosecution to re-establish social equilibrium and promote reconciliation, though laudable and rhetorically inspiring, are simply unattainable. The hope that international criminal prosecutions will reconcile mutually distrustful ethnic groups with a long history of reciprocal hatred is quaint, perhaps even naive.

       Violence is so interwoven with the maladies in the continent - corruption, poverty, ethnic tensions - that it is doubtful if criminal prosecutions alone can serve as a chastening influence on the behavior of the leaders or the citizens trapped within the society. Building an effective strategy to reestablish social order in post-conflict African societies requires an understanding of the idiosyncratic environmental factors that animate violence, as well as recognition that criminal prosecutions cannot address the social pathologies that have disfigured Africa.

       It is these pathologies that will define and shape Africa’s future, not the legacy of criminal prosecutions. First, efforts to use criminal prosecution to modify behavior and contribute to social equilibrium rest on a failure to appreciate that causes of conflict in Africa cannot be resolved through the criminal process.The overarching goal of criminal prosecution is to apportion blame and punish the guilty. Criminal prosecutions are not designed to and can neither address nor alleviate the underlying social problems that lead to and perpetuate violence.

THE FUTILITY OF LIFE

   'A human being is a weak, ugly, sinful creature born that way, rotten in his bones-so humility is the virtue he ought to practice. He ought to spend his life on his knees, begging to be forgiven for his dirty existence. When a man thinks he is good that is when he is rotten. Pride is the worst of all sins, no matter what he has done.'( Ayn Rand)

   Solomon wrote and said, “Meaningless! Meaningless!” says the Teacher. “Utterly meaningless! Everything is meaningless.” What do people gain from all their labor at which they toil under the sun? Generations come and generations go,but the earth remains forever.The sun rises and the sun sets, and hurries back to where it rises.The wind blows to the south and turns to the north; round and round it goes, ever returning on its course.All streams flow into the sea,yet the sea is never full. 

To the place the streams come from,there they return again^.All things are wearisome, more than one can say.The eye never has enough of seeing, nor the ear its fill of hearing.What has been will be again,what has been done will be done again; there is nothing new under the sun.Is there anything of which one can say, “Look! This is something new”?It was here already, long ago; it was here before our time. No one remembers the former generations, and even those yet to come will not be remembered by those who follow them.(Ecclesiastes 1:1-12)

  God gives some people wealth, possessions and honor, so that they lack nothing their hearts desire, but God does not grant them the ability to enjoy them, and strangers enjoy them instead. This is meaningless, a grievous evil.There is something else meaningless that occurs on earth: the righteous who get what the wicked deserve, and the wicked who get what the righteous deserve. This too, I say, is meaningless.

  So I commend the enjoyment of life, because there is nothing better for a person under the sun than to eat and drink and be glad. Then joy will accompany them in their toil all the days of the life God has given them under the sun.When I applied my mind to know wisdom and to observe the labor that is done on earth—people getting no sleep day or night—  then I saw all that God has done. No one can comprehend what goes on under the sun. Despite all their efforts to search it out, no one can discover its meaning. Even if the wise claim they know, they cannot really comprehend it.

    Go, eat your food with gladness, and drink your wine with a joyful heart, for God has already approved what you do.  Always be clothed in white, and always anoint your head with oil.  Enjoy life with your wife, whom you love, all the days of this meaningless life that God has given you under the sun—all your meaningless days. For this is your lot in life and in your toilsome labor under the sun.  Whatever your hand finds to do, do it with all your might, for in the realm of the dead, where you are going, there is neither working nor planning nor knowledge nor wisdom. 

   Now all has been heard; here is the conclusion of the matter:
Fear God and keep his commandments,for this is the duty of all mankind.For God will bring every deed into judgment, including every hidden thing,whether it is good or evil. 

THE SYSTEM OF GOVERNMENT

   That laws are made to be broken, so that the powerful can control the weak, so that they can blackmail one another, so that in the end it is a man-eat-man society .These are the times when wealth is acquired through conquest not by intelligence and integrity. Money is no longer made through brilliance in innovation, no, we are back to slavery.

   The weak work tirelessly to make the little they can to survive. But the powerful sit down and come up with regulations to rob the poor of the little they have.The powerful have immunity from almost all the rules they make. They are not expected to break them. If they do, then its not wrong and they were doing it for the poor and the weak.Look at the cocoons the tribes represented by the individuals facing charges at the ICC have retreated to.

  Who should be more powerful? The scientist who invents a great machine that can produce goods that improve livelihoods or the politician who decides on tax rates and awards himself hefty salaries and allowances? The great thinkers who spent years behind closed doors indulging their minds to come up with manuscripts that instil intelligence to other minds? Ask yourself who should be more powerful, the doctor who comes up with a procedure that can safely remove a brain tumor?

   We don't reward human power anymore, we reward brutality, guns, and bloodshed. We give in so that we can live. There is no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, then there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? Whats there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted, and you create a nation of law breakers, and then cash in on guilt.Now that is the system.

THE MEANING OF LIFE

'Every art and every inquiry, and similarly every action and choice, seems to aim at some good; accordingly, the good has rightly been declared to be that at which all things aim.'(EN 1094a 1-3)Aristotle
Is there an obvious candidate for the final good for human beings?

According to Christopher Shields a philosopher,the final good and ultimate reason for all our action is simply our happiness. We all wish to be happy. We wish happiness for its own sake, and not for the sake of anything beyond it, we pursue other things for the sake of happiness; happiness by itself, suffices to make our lives good. This is why, in fact, we wish for happiness above all else. Moreover, this is why the question 'yes, but why do you want to be happy' is otiose. In the domain of purposive behavior why questions come to an end with happiness.

What is it though, that we desire? Though we all agree that we seek happiness, it turns out that our agreement obscures important forms of disagreement because we turn out to disagree about the nature of happiness. When queried some of us will say that happiness consists in warm and fuzzy self-regard; others suppose that happiness is fame; others wealth; and many more are confident that happiness is pleasure.
Ayn Rand, another philosopher, came up with a philosophy she named objectivism and described it as a philosophy for living on earth. Objectivism, according to her is an integrated system of thought that defines the abstract principles by which a man must think and act if he is to live the life that is proper to a man. She argues that reason is mans only means of knowledge, his basic means of survival.

 Reason is mans only proper judge of values and his only proper guide to action. Man is an end in himself, not a means to the end of others, he must live for his own sake, neither sacrificing himself to others or others to himself; he must work for his rational interest, with the achievement of his own happiness as the highest moral of his life.

Rand seems to reject any form of altruism- the claim that morality consists in living for others or society. No matter how much we may dedicate ourselves to the service of others we are never truly appreciated and whatever appreciation we get is in itself a cold demand for more. We hope such service will bring us some sense of self achievement but in the end it erodes our sense of happiness. It is at this point that we begin to use our dedication to others as a means of domination. We then realize that what we are doing in essence is to try and find happiness and that we should have been focused on that initially.

In order for man to achieve happiness he must live in his head. Creating what he wants first in his head and then working to realize it. Trying to copy others only leads to self destruction. The government does not build infrastructure for the people, but to create opportunities to achieve the selfish goals of each of the individual leaders in such a government. That is why they never concentrate on what does not serve their interests. May be that is what man was made to be. Looking out for himself first and then the rest will fall into place. If everybody builds a road to their home and everywhere else they want to go, then we will never lack good roads and that is in the interest of everyone.

 However, remember that the purpose of philosophy is not to help men find the meaning of life, but to show them that there is none and that the duty of thinkers is not to explain, but to demonstrate that nothing can be explained.

WILL KENYA WIN THE WAR AGAINST PIRACY ALONG HER COAST?

In the recent past millions of children, women and men have been the victims of unimaginable atrocities that have left the conscience of humanity in shock. Such crimes threaten the peace, security and well-being of the world.The most serious crimes of concern to the international community as a whole must not go unpunished. All persons are united by common bonds, their cultures pieced together in a shared heritage. This delicate mosaic may be shattered at any time if crimes and atrocities as have been seen during recent times in this century are not stopped and avoided. The post-election violence experienced in Kenya in 2008 is an example of atrocities that have shocked the conscience of humanity and should not be allowed to be repeated at all costs.

International law imposes on states the duty to prosecute or extradite persons responsible for international crimes. The blogger  focuses on this, presenting an analysis of the position of international law on the question whether and to what extent states are under a legal obligation to prosecute international crimes. He reviews this question in relation to the concepts of jus cogens and the obligation erga omnes. Although it is sometimes contested that piracy is not an international crime, we nevertheless think that piracy deserves to be included in the category of international crimes affecting the international community. This crime has persisted in the Indian Ocean and the Coast of Somalia in Africa. The blogger is looking at the international legal framework regulating piracy and Kenya’s domestic system, which has been singularly entrusted with the task of prosecuting pirate cases off the coast of Somalia. He concludes that, although

Kenya has prosecuted piracy, it has faced several challenges including inadequate international and municipal legislative frameworks, jurisdictional problems and a lack of capacity. The blogger will focus on crimes under international law – that is, conduct that infringes international law and which is punishable as such by the imposition of individual criminal liability – rather than all crimes that have an international aspect. Furthermore, he does not analyse all conduct that may constitute a crime under international law but rather deliberates on those crimes that constitute jus cogens violations of international law, especially war crimes, crimes against humanity, genocide, and torture.

THE PLACE OF INTERNATIONAL CRIMINAL LAW IN KENYA

  

 No man is an island, entire of itself; every man is a piece of the continent. Any man’s death diminishes me because I am involved in mankind, and therefore never send to know for whom the bell tolls; it tolls for thee(j Donne). International law imposes on states the duty to prosecute or extradite persons responsible for international crimes. Questions related to the international legal obligation to prosecute and punish international crimes have generated rich discussion.

 While most commentators agree that international crimes should be prosecuted and punished pursuant to international law, the content of the duty to prosecute and punish these crimes under the substantive body of international law remains contentious. Many analysts argue that international law places hardly any restraints on a state's discretion in the punishment of international law crimes. A principal reason for this is that key sources of the duty to prosecute international crimes fail to expressly oblige states to prosecute and punish violations.

A further argument is that state practice so far is inconsistent. The rule of law is the main pillar of a true democracy in the 21st century and despite the knowledge of this statement the reality of it in Kenya is as much a mystery as it is a dream that has proved too hard to achieve or too elusive to catch. All states affirm that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation as is the spirit of the Rome Statute of the international court.

 Crimes have been committed in Kenya that deeply shocked the conscience of humanity and warranted the intervention of international criminal law.When will justice be done?