Wednesday, April 17, 2013

Can Party Politics Overide National Politics?


D.R.Ruhweza

Introduction

There have been various news stories in the Ugandan media and the internet to the effect that some Members of Parliament belonging to the ruling National Resistance Movement Organisation have been dismissed from the party for indiscipline.  The debate that has followed is whether the action of the NRM party means that the members of Parliament should now relinquish their seats or have their seats declared vacant supposedly by virtue of Article 83 of the Constitution of Uganda. 
L-R MPs Tinkasimire, Sekikubo, Nuwagaba

On the one hand, the Secretary General of the Party opines that the MPs should lose their seats, while the 'House spokesperson has said that the said MPs, 'Theodore Sekikubo (Lwemiyaga), Mohammed Nsereko (Kampala Central), Wilfred Niwagaba (Ndorwa East) and Barnabas Tinkasimire (Buyaga) will retain their seats since there is no indication that they have crossed to another party -- a situation which would have rendered their situation untenable in Parliament.

The Law

 Article 78(1) provides that: “Parliament shall consist of:-

(a)     “Members directly elected to represent (geographical) constituencies

(b)    One woman representative for every district

(c)      Such numbers of representatives of the army, youth, workers, persons with   disabilities and other groups as Parliament may determine”.

(4) Parliament shall, “by law, prescribe the procedure for elections of representatives referred to in paragraph (b), (c) of the clause 1 of this Article”.


Notice that there is no mention of MPs being voted by virtue of representing specific political parties

Article 83 states -

 83. Tenure of office of members of Parliament.

(1) A member of Parliament shall vacate his or her seat in
Parliament—

(a) if he or she resigns his or her office in writing signed by him or
her and addressed to the Speaker;

(b) if such circumstances arise that if that person were not a member
of Parliament would cause that person to be disqualified for
election as a member of Parliament under article 80 of this
Constitution;

(c) subject to the provisions of this Constitution, upon dissolution of
Parliament;

(d) if that person is absent from fifteen sittings of Parliament without
permission in writing of the Speaker during any period when
Parliament is continuously meeting and is unable to offer
satisfactory explanation to the relevant parliamentary committee
for his or her absence;


(e) if that person is found guilty by the appropriate tribunal of
violation of the Leadership Code of Conduct and the punishment
imposed is or includes the vacation of the office of a member of
Parliament;

(f) if recalled by the electorate in his or her constituency in
accordance with this Constitution;

(g) if that person leaves the political party for which he or she stood
as a candidate for election to Parliament to join another party or
to remain in Parliament as an independent member;

(h) if, having been elected to Parliament as an independent candidate,
that person joins a political party;
MP Muhammed Nsereko

(i) if that person is appointed a public officer.

(2) Notwithstanding clause (1)(g) and (h) of this article, membership
of a coalition government of which his or her original political party forms
part shall not affect the status of any member of Parliament.

(3) The provisions of clauses (1)(g) and (h) and (2) of this article shall
only apply during any period when the multiparty system of government is
in operation.

Issues

I have identified two issues in this debate -

  1. Whether being sacked from a political party equates to 'leaving' that party as envisaged by Article 83 1(g) of the Constitution; 
  2. Whether  a member of parliament can be subjected to 'disciplinary proceedings' for what he or she says in and outside parliament

Issue One

A quick search of the meaning of the words reveals to me that the synonyms for the word 'leave' are
verb.  depart - quit - abandon - forsake - go - desert

The above words are in no way literaly synonymous with the word 'dismiss' which connotes 'sending away; discharging or removing'

We can reliy on earlier Constitutional cases to give some light to how this matter will or should be concluded: 

The Supreme Court Judgement in Lukyamuzi v Attorney General, Electoral Commission (Constitutional Appeal No.2 2007) can be a starting point. In that case, the appellant contested the finding of the Constitutional Court regarding its interpretation of Article 83 (1) (e). The Supreme Court held that if the IGG was the Leadership tribunal envisaged in Article 235A of the Constitution, then the IGG as an institution makes breach of the principle of nemo judex in causa sua (no person shall be a judge in his or her own cause). 


L-R MPs Tinkasimire, Sekikubo, Nuwagaba
Similarly, the decision of the Supreme Court in Brigadier HenryTumukunde v The Attorney General & Anor (Constitutional Appeal No. 2 of 2006) should also move us into the right direction. In that case, Engwau JSC held that ''It is a misconception, in my view, to say that in all cases the Speaker does not need to know the reasons why a member of Parliament is resigning his or her seat in Parliament. He controls and safeguards the interests of Members of Parliament within the precincts of Parliament under Article 97 (1) of the Constitution and under The Parliament (Powers and Privileges) Act.'' 

In his lead Judgement, Justice Kanyeihamba, while acknowledging  that 

As long as the appellant remains an active soldier he also remains subject to the discipline and rules of the UPDF command, institutions and superior officers, only subject to the provisions of the Constitution and laws of Uganda. Whether or not any of its men and officers including the appellant committed any military offence remains a matter for the UPDF command to determine and direct what action should be taken. Subject to the Constitution and Laws of Uganda, military authorities continue to exercise jurisdiction over UPDF personnel outside Parliament.

Lastly, the decision of the Constitutional Court in Fox Odoi - Oywelowo and Another v Attorney General (Constitutional PetitionNo. 8 of 2003) also give us some guidance since they dealt with issues regarding Separation of powers /discretion when considering the removal of a public officer. 

Therefore, if the aforementioned matter is to be taken to Court, it is my submission that the Judges will probably use the 'mischief rule' of Statutory interpretation when looking at Art.83.1(g). The rule seeks 'to determine the "mischief and defect" that the statute in question has set out to remedy...''. In so doing, the Court will or should look up the Hansard of Parliament which indicates that the purpose of Article 83 1(g) was to prevent MPs from ''crossing the floor'' once they were elected to parliament. Such a situation is dissimilar to the instant case. 


Similarly, if we use the 'literal' rule of interpretation - it is going to be an uphill task to convince any properly constituted tribunal that the word ''leave'' means or includes ''being chased''. I n any case, the said MPs could easily argue that they would like to remain in the NRM and that it's not their intention to cross to any other party.

In spite of the above, i suspect that the golden rule of interpretation might be used to justify why the MPs should relinquish their seats but i doubt whether it will be upheld especially in light of Justice Twinomujuni's reasoning in the Lukyamuzi case (which reasoning was upheld by the Supreme Court). 
NRM Sec. General Amama Mbabazi

Issue Two

At the root of this debate however is the unenviable situation where a MP who belongs to a specific party does not agree with what his or her party position is and seeks to rebel against the party's position. Similar situations have been observed in the UK and elsewhere in which some party members have opted to 'rebel' by voting, or speaking publicly against specific bills presented by their party.  These scenarios are what Justice Kanyeihamba stated in obiter dictum while referring to the Tumkunde case. He wrote -

Firstly, I wish to observe that a Uganda soldier who is elected by his or her peers to represent them in Parliament while continuing to be a member of the UPDF occupies unenviable position of responsibility.  On the one hand, Article 79 of the Constitution prescribes that such a member of Parliament is equal in all respects to other honourable members of Parliament who are collectively empowered to exercise the supreme legislative authority of Uganda on any matter for the peace, order, development and good governance of the country.  On the other hand, such member’s continued membership and participation in the activities of the nation’s security forces severely restricts that member’s ability to perform effectively in the realization of the aspirations of the constituents he or she represents, let alone the whole of Uganda.  In my view, this unattainable dual role of the UPDF members of Parliament ought to be revisited again by this nation.  Several issues which relate to the immunities and privileges of members of Parliament need to be considered. These are partly prescribed in the Parliament (Powers and Privileges) Act which outlines some of them and other detailed rights, immunities and privileges are contained in the Rules of Parliament supplemented or amplified by ancient conventions and rules of practice in free and parliamentary democracies.
In the same breath, the position of a member of a political party - in this case the NRM, who wishes to deviate from the party position is unenviable. While such 'Member of Parliament is entitled to speak freely on any matter and no legal action can be brought against such a member for anything he/she says within Parliament,' he is liable to be sued or tried for what he or she says outside the confies of the Parliament. 
MP Sekikubo Theodore -Lwemiyaga
Even more discomforting, such member of parliament must tow the NRM party line and in breach of which, be subjected to the disciplinary procedures of the said political party pursuant to Article 9 of the NRM Constitution.

It remains to be seen whether - as in the instant case - the disciplinary procedures of a party can lead to such member losing his or her seat in parliament. 

Conclusion

In my humble opinion, this is not such a case. The Speaker of Parliament should therefore take heed of the Tumukunde  ruling by not acting 'hastily in this case and depriv(ing) (her)self of the authority to defend the ...[erstwhile NRM] Member(s) of Parliament.

Friday, April 12, 2013

The Shepherd's Staff

By D.R.Ruhweza

(Inspired by true events)

Stuck in the crevice
Sometimes bleating
Sometimes unaware
Yet danger lurks
Crounching
Ready to pounce



The Shepherd's Staff
Guiding
Protecting
Waves off the thicket
Shoos away the menace

The Shepherd's Staff
Hooks around my neck
Drags me away from the slippery slope
Back into the safety of His arms
Am safe
Yet again

Am wondering -
How does He notice 
My drifting away
My meandering
My Wondering
My carelessness

Just in time
Always in time
Saved by the Bell
Saved by Grace
Saved!

Like the moth
To deadly fire
Like the carnivore
To Blood
Like the Bovinae
To Salt
Am drawn

The Shepherd's Staff
Out of the bog
Off the the railroad
Away from the poison
Out of the Titanic
Removed from danger
Detached
Ejected
Eliminated
Evacuated
Excised
Expunged
Extracted
Withdrawn

The Shepherd Staff

Truly
He Cares!!

By D.R.Ruhweza
12.04.2013
04:07 a.m

Tuesday, April 09, 2013

‘‘Innocent Until Proved Guilty!’’ Simple!





“Innocent until proven guilty” is a defining principle of all respected legal systems. [...]Presumption of innocence allows an individual to run, win and hold public office until they are found to be anything other than innocent.[2]
____________________________________



Summary

ICC Prosecutor,Fatou Bensouda, Mr. Ruto & Mr Kenyatta
This commentary was inspired by events surrounding the March 2013 electoral process in Kenya. It is a general analysis of the realpolitik surrounding the pre and post election of Mr. Uhuru Kenyatta and Mr. William Ruto as President and Vice President respectively of the Republic of Kenya.  Specifically, the commentary engages with the way the challenge to their election had been based on their indictment before the International Criminal Court, and their subsequent treatment by certain sections of the public, the media[3] and the diplomatic community.  

The commentary also engages with the role of the Kenyan citizen in determining his/her democratic and other rights as well as analysing the perception of the ICC in Africa generally and Kenya in particular.  This especially so because it is considered in some cases to be a tool for political opportunists to dispose of their opponents.[4]



1.0     Introduction



Having been exposed to the dire consequences of the abuse of the rule of law, I know so well as to advocate for the rights of the accused persons in any criminal trial. As one who has researched about the fallibility of the judicial processes in local and international jurisdictions, I am equally quick to acknowledge that not only is proving the commission of a crime beyond reasonable doubt a herculean trust, it also envisages impartiality of the tribunal and the officers of the court which is oftentimes harder to divorce from the political and social context in which the process is set.[5]   

Even more crucial, regardless of the offences for which one is accused, there is an expectation of any democratic society, and the international legal community is no exception, that we ought to see – in practice – all that is being preached about the tenants of due process. Failure to do so sets dangerous precedents which are often very hard to stop : judicial sanctioning of coups d'├ętat,[6] justifying abuses of the rights of citizens,[7] and other absurdities that often times affect the very people for which they were intended.[8]



It is also of paramount importance that those of us who seek to advocate for the cause of accountability and reconciliation, especially in post-conflict situations, take heed not to ignore the central role played by the individual citizen in determining what he or she thinks is best. This is what some have called legal realism.[9]

 

The main contenders in the Presidential election Uhuru and Raila
It is in this light that I have been following with growing concern, news reports regarding the way in which some people, institutions and countries have been treating the recently elected President of Kenya Uhuru Kenyatta and Vice President - elect   William Ruto. It is unsettling that the accused persons have been given a ‘hands-off’ attitude[10] like biblical lepers - guilty even before their trials commence at the International Criminal Court.


2.0     The Status Quo of the ICC Indictments

 
Kenya’s President-elect Uhuru Kenyatta and Vice President - elect   William Ruto were indicted by the International Criminal Court  and their cases were confirmed by the Pre-Trial Chamber II of the ICC.[11] The two were part of the original 'Ocampo 6' suspects arraigned by the former ICC Prosecutor Luis Moreno - Ocampo for committing crimes against humanity after the contested December 2007 Presidential elections.[12] Estimates indicate that at least 1200 people were killed and 500,000 displaced in the post election violence.




Confirmation of charges hearings later dropped the cases against former Industrialisation Minister Henry Kosgey and former police commissioner Mohammed Hussein Ali—leaving only Uhuru Kenyatta, William Ruto,  Cabinet Secretary Francis Muthaura and former radio presenter Joshua Arap Sang.  Their trial dates had earlier been set for April 2013 but they sought for an adjournment 'due to the delayed disclosure of evidence and witnesses by ICC prosecutor Fatou Bensouda' as well as the need for referral 'back to the Pre-Trial Chamber in order to deal with issues such as the recanted testimony of a key witness.' [13] The ICC Prosecutor has since filed a petition to withdraw the charges facing Former Head of Civil Service  Francis Muthaura since the evidence of witness Number Four had been recanted 

Outgoing President Mwai Kibaki, Premier Raila Odinga,former UN Secretary General Koffi Annan after the peace deal, 2008


To date therefore, only three suspects remain charged and their cases are set to commence on the 28th May 2013 for William Ruto and Joshua Arap Sang and July 9, 2013 for Uhuru Kenyatta. Uhuru's lawyers have since argued that his case cannot stand if Muthaura's collapses because “according to the prosecution’s analysis, Uhuru and Muthaura colluded to exercise a level of control over the Mungiki and the police forces, such that the allegedly planned and coordinated post-electoral violence could take place.”[14] 


Uhuru and Muthaura at the ICC
Uhuru’s lawyers therefore argue that ''the two (alleged) roles are interdependent, and the realisation of the alleged common plan necessarily relies upon the contributions of both accused. Therefore, the alleged role of Uhuru cannot be considered in abstraction.” However, the Prosecutor maintains that the case against Uhuru shall still proceed and we await the ruling of the Chamber on this matter.


3.0     The Prevailing Law




The above process shows that the ICC is carrying out its role in ensuring that the cases involving the accused persons are handled. However, we should not forget that the three said persons remain suspects whose cases have not yet been proven beyond reasonable doubt. 


a)    Article 66 of the Rome Statue States: (1) Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law. (2) The onus is on the Prosecutor to prove the guilt of the accused. (3) In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt. 


b)    Similarly, Article 11 (1) of the Universal Declaration of Human Rights 1948 states: “everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.” 


c)    Article 14(2) of International Covenant on Civil and Political Rights ICCPR states: “everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.” 



d)    Article 7(1) of African Charter on Human and Peoples' Rights 1981 ACHPR says: “every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; (b) the right to be presumed innocent until proved guilty by a competent court or tribunal; (c) the right to defense, including the right to be defended by counsel of his choice; (d) the right to be tried within a reasonable time by an impartial court or tribunal.”


e)    Article 50 of the Kenyan Constitution also talks about the presumption of innocence until the contrary is proved. [15]



Former Head of Civil Service/Secretary to CabinetFrancis Kirimi Muthaura
In light of the above provisions, any attempt to treat the accused persons otherwise should be resisted as it prejudices the case of the defendant even before such accused person is put to his defence. 
 

The withdrawal of charges against the Former Head of Civil Service  Francis Muthaura as well as the various cases of persons accused of war crimes and crimes against humanity which have been either discontinued, dismissed or withdrawn should go along way in showing how important it is to afford equal treatment and promote fairness while dealing with the accused persons.[16]

Whereas it is impossible to delink questions of power, bias, influence peddling, bribery of witness, selectivity of prosecutions from the way these cases are selected, prosecuted or defended, what should remain clear is that due process should be carried out. [17]



Fatou Bensouda swears in as ICC Prosecutor
Therefore, regardless of what the outcome of the impending criminal trials will be, the attempts by some NGOs to block the Uhuru and Ruto from participating in the March elections is not only flawed, but also a contravention of the principles of natural justice. To hold otherwise would imply that they are already guilty and what is being conducted at the ICC is a waste of time and States Parties' money. Such an insinuation would also go to the very heart of undermining the whole essence of trial justice.  I therefore associate myself with the findings of the Kenyan High Court to the effect that the duo should stand for political office.[18]




4.0     The Reactions




I therefore think it is inappropriate and it does send a conflicting message when certain diplomats treat the ICC indictees as though they were already adjudged or as though they had refused to cooperate with the court.  The US, Britain and the former UN Secretary-General Kofi Annan had earlier indicated that Kenyatta's victory would not be welcome.[19]


 

Najib Balala, Uhuru, Ruto,Charity Ngilu- Jubilee Coalition
The British High Commissioner Christian Turner noted that his country would only maintain essential business contacts with the ICC indictees while the former US Assistant Secretary of State for African Affairs Johnnie Carson Johnnie Carson, in what was seen to contradict President Obama's pledge to remain closely tied to Kenya, warned the Kenyan populace that “choices matter and they have consequences.” Carson further said that “[i]ndividuals have reputations, individuals have images, and individuals have histories. Individuals are known for who they are and what they do, what they have said, and how they act.” [20] This comment, which was made before the elections were conducted, was considered in some circles as  ‘a veiled support for Kenyatta's opponent, Raila Odinga and drew the criticism of many.’ [21]


The aforementioned is a contradiction since the very people of Kenya who supported the ICC intervention have also voted ICC indictees into power. Mr. John Kerry the US Secretary of State who congratulated Kenya on its peaceful elections, stopped short of specifically mentioning Uhuru Kenyatta's name.[22] On the one hand, the USA has applauded the Kenyans for having had a peaceful election, and even encouraged them to resolve any electoral disputes through the Kenyan legal systems (which would signify that they have trust in the national systems) yet on the other hand; they ignore the victorious parties from the said elections. In so doing, the USA, and other western States have sent contradictory messages – something which undermines the very principles of democracy and good governance that they seek to promote worldwide. 


Ms. Jendayi Frazer


For some, this was seen as interference in the domestic politics of a sovereign nation, as a ‘not so subtle attempt to use the ICC politically to essentially threaten Kenyans about whom to vote for in their presidential elections’[23] while for others, this was a breach of the presumption of innocence which is a benchmark of the western philosophy of trial justice. I agree with Ms. Jendayi Frazer when she expresses her concern over the way these actions affect the ‘credibility and effectiveness of US policy in Africa’.[24]  Whichever the case, the electoral process, which was widely seen as free, fair and peaceful, had an 86% voter turnout from the 12 million registered voters – a no mean achievement for Kenya and Africa generally. This election has since been upheld by the Supreme Court of the land and put the aforementioned diplomats in an uncomfortable situation.[25]





5.0 An uncomfortable Situation




The aforementioned action by Kenya’s western development partners needs to be understood in context of Kenya’s strategic geo-political situation.[26] It is trite knowledge that the UK and USA have very deep relationships with Kenya and according to Ms. Jendayi Frazer, the former U.S. Assistant Secretary of State for African Affairs, an awkward situation exists for the Western countries particularly for the EU, the UK and the US which had come out prior to the vote and essentially tried to influence the elections.




Frazer also notes that in spite of their reservations, Kenya is vital to them and as such the relationship (at least with the USA) will most likely be 'business-as-usual.' This is because Kenya is crucial in the fight against piracy and the Al- Shabbab in Somalia.[27]  Kenya provides training facilities for British troops. Investment advisor Aly-Khan Satchu also argues that both the UK and the USA will have to work with Kenya and Kenyatta because the UK and Kenya are much more interconnected with much deeper ties  than somewhere like Sudan [whose president Omar al-Bashir is also indicted at the ICC and drawn wide-ranging sanctions]. 


Mr Kenyatta, who has  thus far, indicated a willingness to cooperate with the ICC, has also stretched out his hand to the West – which has continued to have a weakening presence in Africa and will thus not want to lose such a vital ally. Besides, as Ms. Jendayi Frazer observes, Mr. Kenyatta is a person who the USA can work with, having worked with him when he was Finance Minister and as Deputy Prime Minister. She therefore does not envisage a situation where a major shift in the relationship will occur. 



Uhuru Kenyatta as Finance Minister

However, it should be remembered that Mr. Kenyatta does have 'other options' in case the West gives him a cold shoulder - the ever growing influence of China in Africa, seen by the way it has continued to support President Omar Bashir. This geopolitical reality therefore places the western states in an awkward situation.  



The other reason why the mutual interest between Kenya and the US will prevail is because the USA is not a signatory to the ICC and it will not allow the ICC to interfere with its strategic geopolitical interests in Africa. Jendayi therefore argues that it will seem hypocritical for the US to insist on the ICC indictment of Kenyatta as a predominant factor in its relationship with Kenya. In any case, she argues that the case against Mr. Kenyatta case at the ICC is a weak one, since one of the crucial witnesses against him has been impugned by the Prosecutor.



On Saturday 16 March 2013, the election of Uhuru Kenyatta was challenged before the Supreme Court of Kenya.[28] On Saturday 30 March 2013, the Supreme Court upheld the election results.[29]  The election results can be interpreted as a sign that the ICC is seen more an instrument of geo-political politics and local national politics rather than an instrument for post-election justice.[30]

 

Thus, irrespective of the case at the ICC, over six million Kenyan people voted the ICC indictees into power since they do not appreciate the way the ICC indictments singled out a few people and left key players [31]like Mwai Kibaki or Raila Odinga. Muthoni Wanyeki, former Director of the Kenya Human Rights Commission posits that one of the possible explanations as to why Uhuru Kenyatta won the election is because the Kenyan people have lost the memories of the distinct patterns of violence that happened after the 2007 elections  or because they do not think that their own understanding of what happened or what should be done to resolve the judicial questions of the day have been addressed by the ICC intervention. As Dr Luis Franceschi, the Dean at the Strathmore Law School in Nairobi predicted, “What is certain is that law does not operate in a vacuum but in a social context, so the Supreme Court will have this very much at heart when deciding (about the petition).”[32]  




Ruto, Uhuru, Charity Ngilu, Najib Balala, - Jubilee Coalition
This also calls in the question to review theapproach taken by the ICC – or at least its former Chief Prosecutor - in selecting of cases to be tried before it especially in light of the fact that not only are the majority of cases centred on Africa, ‘[a] review of ICC cases also reveals that some African officials have instrumentally cooperated with the Prosecutor to indict their political opponents, further diminishing the impartiality of the Court.’[33]





6.0 ‘Rethinking’ the role of the Kenyan Citizen




The aforementioned state of affairs is yet another example of the need to re-evaluate the role of the law and how it is constructed and created. It signifies that far from the legal positivist approach to law as the means within which society resolves its issues, our focus should be on the role played by the individual citizen-subject in any legal decision. Those of us who are concerned about peace and transitional justice and the debates surrounding these two issues, have once again encountered a situation similar to the outcome of the 2008 Juba Peace process,[34] where the parties to the Agreement shunned a one-sided approach to the resolution of multi-faceted disputes in the pursuit of justice and at the expense of peace and social cohesion. 

Maasai line up to vote, March 2013

While the ICC was meant to be but one option of achieving peace and stability by bringing those accused of the most heinous crimes to book, the rhetoric surrounding the efficacy of the ICC - as seen by the reaction of the diplomats mentioned above - is that the ICC is a ‘silver arrow’ that will end all and resolve all. However, the Kenyan people, like the parties to the Juba Peace process involving the Government of Uganda and the LRA, have shown that while the ICC intervention is welcome, these are more complex issues to be dealt with. Hence, the need for reconciliation like in RSA, compensation, memorisation, amnesties, truth telling et al. 

 It is therefore not enough to say that since the Kenyan people supported the ICC intervention when the option was presented five years ago, they should therefore not be seen to retract or act contrary to that view. Rather, it should be a wake-up call for those of us involved in transitional justice issues, to query whether the votes given to these ICC indictees are also a referendum to the work we have been championing and advocating in the name of peace and justice. The Kenyan people may indeed have forgotten the patterns of violence that occurred as Muthoni suggests, but even more importantly, those victims who remain in the IDP camps may have realised –as Muthoni suggests- that the symbolic trials will not help them recover their land or to deal with the day to day socio-economic challenges in their communities -be they housing, tribal politics, employment, poverty etc.  




Kenyans Voting March 2013



This should also make us realise that the coalition between the Kikuyu tribe (represented by Uhuru Kenyatta), and the Kalenjin tribe (represented by William Ruto) who were on opposing teams in the last election, is a good thing that should be applauded and supported. Equally important to note is that since the March election, former Presidential aspirant Wycliffe Musalia Mudavadi, from the Maragoli who are the second largest tribe of the 6 million-strong Luhya nation in Kenya, has since joined the ‘Uhuruto’ Jubilee coalition.[35] One of the interpretations of this move is that there is a desire to move on and advance the cause of the nation; while on the other hand, it might be merely political survival that drives them. Whichever way, what is important to note is that the individual subject should be seen in their role  as a 'law inventor' and not merely as 'law abiding.'

More attention should be given to the fact that this individual-citizen-subject might sometimes contradict themselves and sometimes agree across or within the tribal divide or other social stratification. Neither should we forget that many of these individuals are victims on one hand but also perpetrators of the same violence they seek recompense for.  Their needs therefore, cannot be essentialized and they should not be seen as having a homogenous attitude to the judicial or reconciliatory questions of the day. 



Charity Ngilu, Ruto, Uhuru, Najib Balala, - Jubilee Coalition
This means that the Luo mother of two children who might have been fathered by a Kikuyu or Kalenjin, might have voted differently since 2002 but still chosen to remain married to her Kikuyu or Kelenjin husband or boyfriend. She could have voted for Kibaki and the National Alliance Party of Kenya (NAK) in 2002 and then made a switch to vote for Raila Odinga and ODM in the 2007 elections, and then for Kenyatta in the just concluded 2013 March elections. The point being made here is that whereas the Kenyan populace remains highly ethicized, there are parallel and sometimes complementary reasons why one would vote for one party in one election and then for another in the next. Similarly, there are diverse reasons why one would vote for the ICC indictments but not support the trial of Mr. Kenyatta and Mr. Ruto.




Some of the reasons could be the mere comments by the western diplomats which were seen as a form of patrimonialism, it could be that they came to a realisation that all Kenyans were, victim-perpetrators, or that there was selective prosecution by the ICC, or they agreed or believed in the manifesto of stability and continuity of the past government's favourable plans and the progress towards socioeconomic stability, et al. Therefore, by appreciating the fact that the citizen/ legal 'subject' possesses a transformative capacity that enables them to produce legal knowledge and to fashion the very structures of law that contribute to their legal subjectivity', should give us a better way to understand the judicial needs of a post conflict society rather than assuming the high horse of pursuing an abstract form of justice that is devoid of the social context within which it should ideally emanate. 


Dr Christian Turner, British High Commissioner to the Republic of Kenya with Kenya Chief Justice Willy Munyoki Mutunga


It is in this light that Paul Moorcraft, director of the Centre for Foreign Policy Analysis has noted that the ICC cases have been put in an awkward situation because, not only is the ICC perceived as a neo-colonial intervention ( even if in this case, the referral was made by the Kenyan State itself), but more crucially, " the original indictment was (meant) to try and get some stability after the previous bloody (2007)  elections and now the indictment if it continues, could  undermine this very peaceful election, and as a result, the 'whole purpose of the international intervention is being undermined.' For Mr. Moorcraft therefore, one of the problems with the ICC is the law of unintended consequences." He opines that the ICC is now seen as being tied in a knot where it is seen as the reason for frustrating Kenya’s attempts to move forward and resolve its own issues. 


 


7.0     Way forward 



The above therefore shows that the western diplomats have been put in a catch -22 position. On the one hand, the Kenyan people have spoken through the ballot in what some have considered as a referendum against the ICC, the election has been declared by independent observers as free and fair, the election results have been confirmed by the Supreme Court of Kenya, the President-Elect and Vice President- Elect remain willing and able to defend themselves before the ICC, and the President-Elect and Vice President- Elect  maintain their innocence and promise to support any interventions in the country that will help to find a process in which justice and reconciliation can be achieved.  On the other hand, it is clear that the Kenyan people seem to have different judicial priorities or views about the ICC process: the ICC cases remain symbolic but there isn't a homogenous view of what symbolism they offer - for some the ICC is selective prosecution while for others it is retributive justice whose roots go beyond the 2007 and 2013 elections, to questions about land distribution, the sharing of the national cake, tribal politics as seen by the way different communities voted along ethnic lines and so on. 


2008 Post Election Violence victim with arrow in head


So, while the international crimes division has been created in the High Court in order to try mid level and other higher level people implicated in the 2007 post election violence, it is important that Kenya's development partners are seen to support diverse processes which not only address the different judicial needs of the victims, but also seek to bring reconciliation across the ethnic divide. As aptly put by Muthoni Wanyeki, people have to be pragmatic and resolve these issues as Kenyans and on Kenyan soil. They need to find a process for restorative and punitive justice for all those who are not represented in the cases before the ICC.  



It is therefore my hope, that those in crucial positions of leadership, including the media, should be seen to promote the tenets of due process in addition to upholding the rule of law and good governance regardless of the situation in which they find themselves. There should be no reason for those we consider as rogue to highlight examples of situations where law respecting societies have faltered.




ENDS


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[1] PHD Candidate at University of Kent at Canterbury, Associate Lecturer School of Law Makerere University., Attorney at Law, Uganda. http://uk.linkedin.com/in/danielruhweza

[2] Jendayi Frazer, ‘ICC has fallen from high ideals of global justice, accountability’,  Saturday, March 16  2013 available at http://www.nation.co.ke/oped/Opinion/-/440808/1722100/-/k4rufnz/-/index.html last accessed March 17, 2013.

[3] For example, the New York times has called the election ‘’deeply unsettling’’ http://www.africareview.com/News/New-York-Times-Urges-US-to-Work-With-Kenyatta/-/979180/1720144/-/ebdmm4z/-/index.html#comment-829388199 last accessed March 17 2013
[4] See Dr Tim Murithi., Policy Brief No 10: The African Union and the International Criminal Court: An embattled relationship? available at http://ijr.org.za/publications/pdfs/IJR%20Policy%20Brief%20No%208%20Tim%20Miruthi.pdf last accessed March 17 2013.

[5] "[T]he law that lawyers practice and judges declare is not a definitive, capital 'L' law that many would like to think exists," Judge Sotomayor said in her 1996 lecture at Suffolk University Law School, summarizing Judge Frank's 1930 work entitled "Law and the Modern Mind".  Confidence in the legal system falters, she said, because the public "expects the law to be static and predictable" when in fact courts and lawyers are "constantly overhauling the law and adapting it to the realities of ever-changing social, industrial and political conditions." Jess Bravin , Legal Realism Informs Judge's Views’ available at  http://online.wsj.com/article/SB124346735555660341.html last accessed March 17 2013. See also Sonia Sotomayor, ‘This wealth of experiences, personal and professional, have helped me appreciate the variety of perspectives that present themselves in every case that I hear.’   available at http://www.brainyquote.com/quotes/authors/s/sonia_sotomayor.html#YehJsRKogto57oWF.99 last accessed March 17 2013.

[6]See UGANDA v. COMMISSIONER OF PRISONS EX PARTE MATOVU (1966) E.A. where the Court justified the unconstitutional takeover of government by stating that “Applying the Kelsenian principles, which incidentally form the basis of the judgment of the supreme court of Pakistan in the above case, our deliberate and considered view is that the 1966 constitution is a legally valid constitution and the supreme law of Uganda, and that the 1962 constitution having been abolished as a result of a victorious revolution in law does no longer exist nor does it now form part of the Laws of Uganda it having been deprived of its de facto and de jure validity. The 1966 constitution, we hold, is a new legal order and has been effective since April 1966 when it first came into force”. See also 'The State v Dosso [1958] 2 PSCR 180 (Pakistan)

[7] Afuna Adula notes that in Grace Ibingira and others v. Attorney General (1966) E.A. 305/443, the appellants were arrested on suspicion that they were plotting to overthrow the Government. They applied for a writ of habeas corpus after being arrested unlawfully under the Deportation Ordinance Cap48, 164; Laws of Uganda. The writ was granted and they were transported to Buganda, set free, and then re-arrested under Section 165 of The Emergency Powers (Detention) Act Section 1, 65, of 1966. The East African Court of Appeal upheld the Government decision.
[8] See http://www.bbc.co.uk/news/world-europe-21682470 last accessed March 12 2013
[9] "Returning Majesty to the Law and Politics: A Modern Approach" (with Nicole Gordon), 30 Suffolk U.L. Rev. 35 (1996)  available at http://www.boston.com/news/politics/politicalintelligence/Sotomayor%20Returning%20Majesty%20to%20the%20Law%20article.pdf  last accessed March 17 2013.

[10] ‘‘Those Western countries who had warned about the consequences of voting for Uhuru Kenyatta and running mate William Ruto because of the charges they faced at the International Criminal Court, now maintain a discreet silence. Some are briefing journalists that they find the election results entirely convincing, echoing the cautious assessments released by international observers such as the African Union, the Commonwealth and European Union (which contributed some $100 million to the cost of the election).’’ See Patrick Smith, ‘The West wobbles as Odinga tests election in the courts,’ Africa Confidential, 18th March 2013, available at http://www.africa-confidential.com/blog-entry/The+West+wobbles+as+Odinga+tests+election+in+the+courts last accessed March 18 2013.


[11] See http://www.iccnow.org/documents/REPORT_-_THE_IMPLICATIONS_OF_A_KENYATTA_RUTO_PRESIDENCY_IN_KENYA.pdf last accessed March 17 2013.

[12] See Ocampo 6: Kenya braces for ICC decision,’ 19 January 2012 available at http://www.rnw.nl/international-justice/article/ocampo-6-kenya-braces-icc-decision last accessed March 17 2013.

[13]BERNARD NAMUNANE, ‘Uhuru ICC trial set for July’ Thursday, March 7, 2013 available at http://www.nation.co.ke/News/Uhuru-ICC-trial-set-for-July/-/1056/1714260/-/387ppa/-/index.html last accessed March 17, 2013.

[14] Felix OlickUhuru says his ICC case cannot stand without Muthaura’sMarch 12 2013

https://www.standardmedia.co.ke/?articleID=2000079120&story_title=Uhuru-says-his-ICC-case-cannot-stand-without-Muthaura%E2%80%99s
[15] The High Court of Kenya upheld exactly this principle with its ruling on February 15 clearing the way for Uhuru Kenyatta to run for President in Kenya’s March 4 election.

[16] See for example ‘Rwanda genocide: ICTR overturns ex-ministers' convictions’ BBC, February 4, 2013 available at http://www.bbc.co.uk/news/world-africa-14246766 last accessed April 9 2013. See also ‘UN tribunal reaffirms decision to refer pastor’s case to Rwandan court system’ available at http://www.un.org/apps/news/story.asp?NewsID=40772#.UWPlmVcYn54 last accessed April 9 2013.

[17] See Comments by Charles Griffin in the Charles Taylor trial. the reality is that while many Western countries have funded militias that have committed atrocities, no Western leader has ever been indicted by a war crimes tribunal. Tom Gardner, ‘Convicted war criminal Charles Taylor says he sympathises with victims of the violence in Sierra Leone as he faces 80-year jail sentence, MailOnline,http://www.dailymail.co.uk/news/article-2145364/Convicted-war-criminal-Charles-Taylor-says-sympathises-victims-violence-Sierra-Leone.html#ixzz2PxPUgPOb last accessed March 17 2013. 'Due process' is the legal requirement that all of the legal rights that are owed to an accused person are respected.  https://en.wikipedia.org/wiki/Due_process last accessed March 17 2013

[18] Uhuru Kenyatta free to run after Kenya election ruling, 15 February 2013http://www.bbc.co.uk/news/world-africa-21470423 last accessed March 17 2013

[19] The US has now congratulated Uhuru: "Now that your election has been confirmed, you have the opportunity to build on the promise of Kenya's Constitution and solidify its place as a vibrant and prosperous democracy centered on the rule of law," Obama said. See ‘Kenya: Barack Obama Congratulates Uhuru, Ruto’ The Star, 6 April 2013 available at http://allafrica.com/stories/201304060631.html last accessed April 9 2013.

[20] In effect, the warning contradicted President Obama’s appropriate statement that “the choice of who will lead Kenya is up to the Kenyan people. The United States does not endorse any candidate for office.”
[21] http://world.time.com/2013/03/09/kenyas-election-what-uhuru-kenyattas-victory-means-for-africa/
[22] See http://www.africareview.com/News/US-congratulates-Kenyans-doesnt-name-Kenyatta/-/979180/1715652/-/ql4f1kz/-/index.html last accessed March 12 2013

[23] Jendayi Frazer, ‘ICC has fallen from high ideals of global justice, accountability’,  Saturday, March 16  2013 available at http://www.nation.co.ke/oped/Opinion/-/440808/1722100/-/k4rufnz/-/index.html last accessed March 17, 2013.

[24] Jendayi Frazer, ‘ICC has fallen from high ideals of global justice, accountability’,  Saturday, March 16  2013 available at http://www.nation.co.ke/oped/Opinion/-/440808/1722100/-/k4rufnz/-/index.html last accessed March 17, 2013.

[25] Kenya Supreme Court upholds Uhuru Kenyatta election win, 30 March 2013 http://www.bbc.co.uk/news/world-africa-21979298 last accessed March 17 2013. See also See ‘Kenya: Barack Obama Congratulates Uhuru, Ruto’ The Star, 6 April 2013 available at http://allafrica.com/stories/201304060631.html last accessed April 9 2013.

[26] David Goldman, ‘Why the US, Britain, EU must embrace a UHURU KENYATTA PRESIDENCY’ available at  http://www.jobs4kenya.net/2013/03/news-why-us-brittain-eu-must-embrace_12.html?spref=fb last accessed March 18 2013.

[27] Aggrey Mutambo, ‘Somalia denies opposing funding for Kenya navy’ The Daily Nation,February 17  2013 available at  http://www.nation.co.ke/News/Somalia-denies-opposing-funding-for-Kenya-navy/-/1056/1696592/-/9y37o3z/-/index.html last accessed April 9 2013.

[29] Let us hope that the US will now work with Mr. Uhuru Kenyatta See JUSTUS WANGA ‘Raila: Why I challenged IEBC's move to declare Uhuru president’ Saturday, March 16  2013  http://www.nation.co.ke/News/politics/-/1064/1721896/-/b0149s/-/index.html See also http://www.capitalfm.co.ke/eblog/2013/04/02/the-icc-must-now-leave-uhuru-and-ruto-alone/ last accessed March 17 2013

[31] See http://www.independent.co.ug/news/regional-news/5195-kenya-victims-waiting-for-icc-justice last accessed March 12 2013

[32] ALPHONCE SHIUNDU, ‘Disbanding IEBC requires rigorous process, say experts,’ Sunday, March 17  2013 available at  http://www.nation.co.ke/News/politics/Disbanding-IEBC-requires-rigorous-process-say-experts/-/1064/1722508/-/feelttz/-/index.html last accessed March 17 2013

[33] Jendayi Frazer, ‘ICC has fallen from high ideals of global justice, accountability’,  Saturday, March 16  2013 available at http://www.nation.co.ke/oped/Opinion/-/440808/1722100/-/k4rufnz/-/index.html last accessed March 17, 2013.

[35] Mudavadi signs pact with Jubilee Coalition, Sabahionline, March 17, 2013 available at http://sabahionline.com/en_GB/articles/hoa/articles/newsbriefs/2013/03/17/newsbrief-06 last accessed April 9 2013. See also Kenfrey Kiberenge, ‘President elect Uhuru, Mudavadi in post-election pact’ The Daily Nation, Saturday, March 16  2013  availale at  http://www.nation.co.ke/News/politics/Uhuru-and-Mudavadi-in-post-election-pact/-/1064/1721918/-/format/xhtml/-/nv2wucz/-/index.html last accessed April 9 2013