Kenya’s ICC trials a David vs. Goliath story

‘No one can compensate you for rape. No one can compensate you for infection with HIV. But there is a certain amount of peace only justice can bring. There are those of us who meet our perpetrators every day. Those who raped us are our neighbours. It’s tough knowing that they are still very safe from the arm of the law.’ Survivor of Kenya’s 2008 post-election violence

The most important story in Kenya’s history is currently playing out in the chambers and corridors of the International Criminal Court (ICC). This story encompasses all the other stories that have ripped great tears into our national fabric, going all the way back to British colonial rule. The stories of land – who gets it, who gets kicked off it. The story of ethnicity as destiny. The story of political dynasties – imperial monarchies in all but name. The overarching story of impunity for the rich and powerful.

The ICC Kenya trials are the stuff of epic poetry. There are heroes – the witnesses who have defied every kind of threat and intimidation to tell their stories of dispossession, rape, violence, loss of entire families, during Kenya’s 2008 post-election violence.

There are villains. The previously untouchable politicians and generals who planned and executed chilling campaigns of terror against vulnerable communities. Why? To protect what they considered their inalienable right to the spoils of political office.

In the past year, Kenyans have been treated to the ironic spectacle of our ruling elite displaying a newfound enthusiasm for local manufacturing. The millionaire ministers and MPs who travel in US-made Hummers and helicopters, wear shirts custom-made in London, smoke Cuban cigars, import their furniture from Sweden and their entertainment systems from Japan, holiday in Paris and New York, came out as fervent devotees of the ‘Made in Kenya’ label – but only when it came to justice.

The Kenyan government spent over Sh90 million on campaigns to convince Kenyans that trying the architects of the post-election violence at The Hague was somehow deplorable. Justice for the victims, they said, could only be delivered at home. Kenya should not shame itself before the world by seeking an international resolution.

Europeans may consume daily gallons of coffee and tea grown in the Kenyan highlands, eat fresh garden vegetables flown from the Rift Valley, on tables decorated with roses and carnations from the shores of Lake Naivasha. But the workers who pick the coffee, plant the vegetables, bear the rashes and sores on their skins from the toxic pesticides used on Kenya’s flower farms, must not be sullied by a foreign justice. These essential human cogs in the machinery of global consumerism could not possibly be served by anything but homegrown courts and legal processes.

Fortunately, Kenyans saw through the mendacity of this argument. Over a million signatures were collected in support of the ICC trials. Perhaps even more crucially, it became clear that Kenya’s government lacked the political will to set up the required tribunal in Kenya.

The stage was set for The Hague. One one side – six suspects, accused of “crimes against humanity.” Five of the most powerful men in Kenya and a vernacular radio journalist, alleged to have financed, trained and mobilized militia to terrorize communities from their homes, to burn and loot and rape.

On the other side – 350,000 Kenyans displaced from their homes and livelihoods. Over 3,500 Kenyans seriously injured. The families of 1,220 murdered victims.

It is a David and Goliath story. The Kenyan government anointed the six suspects as Goliath, by opening the national coffers to pay for their legal and PR teams. Planeloads of MPs flew to The Hague and threw lavish parties to ‘support’ the accused.

There were no entertainment budgets for David – the prosecution’s witnesses who were survivors of the post-election violence. These brave Kenyans, who had already endured great loss and pain, were now subjected to a battery of intimidation designed to silence them. Kenya has no witness protection program, and every witness has chosen to remain anonymous. But they still live with the daily fear of being ‘outed’ – with terrible consequences to themselves, their families and their communities.

The quest for justice in international arenas is not new in Kenya. During the state of emergency imposed by the British colonial regime from 1952 - 1960, imprisoned Mau Mau freedom fighters had the temerity to speak out about crimes committed against them. They wrote letters to the United Nations, to British MPs, to the British Foreign Office, even to the British monarch, outlining the tortures and abuses they suffered. ’Where does custration (sic) come from?” demanded one such letter. “Is this the British law or the Nazi law?’

Freedom fighter Wambui Otieno, raped in detention by a colonial officer, famously demanded of the British regime that her rapist be brought to trial. He was forced to return to England.

Before we were a country, we knew ourselves to be part of global movements for justice. Now we have come full circle – the poorest Kenyan can claim the gold standard of international justice that her own government has not afforded her. Can turn to the international statutes and conventions that Kenya is signatory to, and under them, seek redress for crimes committed against her.

What can the victims hope to gain in return for reliving the horrors, and risking their lives all over again?

In an interview with journalist Tom Maliti, on the ICC Kenya Monitor, the lawyer to the victims, Sureta Chana, said they seek, obviously, reparations. While stolen lives cannot be returned, compensation can be calculated for lost homes, land and property. However, there is no ICC protocol for awarding reparations to victims of crimes against humanity. Kenya may well be the test case that sets the precedent for future cases.

Equally important, and perhaps much more achievable, the survivors want an apology. They want to be seen as human beings. Human beings who matter enough to their country to merit recognition of violations against them. The import of this apparently simple longing is enormous, when we consider that to date, not a single politician or elected representative has expressed any remorse or regret to ordinary Kenyans for the post-election violence. The simple words: ‘I am sorry’, from a member of Kenya’s political class, would fundamentally alter our national DNA coding.

In 2009, I narrated a documentary, Burden Of Peace, that gave voice to Kenyan women survivors of the post-election violence. One testimony in particular left me lost for words.

‘Rosemary Akinyi is a 40-year-old widowed mother of five. When police broke down her door in Kibera, she begged them to spare her teen daughter and rape her instead. So they did. Rosemary knew that if she got medical help in 72 hours, she could avert tragedy. But at the time, there was no way out of Nairobi’s slums of death, ringed by police and paramilitaries. Today, Rosemary is infected with HIV.’

Major Gen Hussein Ali, one of the ICC Kenya suspects, head of Kenya’s police force at the time, is alleged to have given the police free rein to go on the rampage against vulnerable Kenyans like Rosemary Akinyi. His testimony to the Waki Commission, the precursor to the ICC trials:

‘My lords, I would do everything exactly the same ... I would not change a thing.’

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* Shailja Patel is a Kenyan activist, playwright and poet, who is the 2011 Letters To Dennis Brutus Poet for Poetry Africa. www.shailja.com
* This article was first published in the CCS KZN newsletter
* Please send comments to editor[at]pambazuka[dot]org or comment online at Pambazuka News.