The ICC Kenya trials that are riveting the country have taken an ironic turn. Kenyan activist, Onyango Oloo, revealed that the defence lawyer for the victims of Kenya's post-election violence, Sureta Chana, was the state senior counsel who prosecuted him for sedition under the repressive Moi regime. Oloo was jailed for five years, alongside hundreds of other Kenyans who exercised their human rights to freedom of expression and association.

Journalist Tom Maliti, in his latest report on the ICC Kenya Monitor, questioned Sureta Chana about this history. She responds:

‘There was no freedom of anything in Kenya at that time. It was a very difficult time for everyone. But every time I would prosecute a case I would make sure that there is proper evidence for that because at the time sedition was crime. And that’s a crime on the Kenyan books.’

This evasion is more than disheartening. It is tragic.

In essence, Chana pleads the Nuremberg Defense: ‘I was just following orders.’

When she is, of course, deeply familiar with Nuremberg Principle IV, which speaks of ‘a moral choice’ as being just as important as ‘legal’ decisions.

Nuremberg Principle IV states:

‘The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him’.

Chana has spoken eloquently of the longing of the victims whom she represents for an apology from those responsible for Kenya's post-election violence. Therefore she also understands that the intangible, immaterial word of remorse, acknowledgment of harm done, recognition of the harmed person as an equal human being, is of immeasurable value. It sutures the raw wounds in the national and individual psyche.

What a gift it would be to all Kenyans if Chana could lead the way, set a precedent, for all those who have done terrible things in their public capacity, by making a full, unreserved apology to those she harmed. What a healing it might be for her own heart and conscience. For the hearts of those she sent to jail, who can never recover the stolen years of their lives. For all of us who struggle towards a peace and justice in the present that does not erase the violations of the past.

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* Shailja Patel is a Kenyan poet, playwright and activist.
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