IN THIS LAND OF LYNCH MOBS,JUSTICE GETS SACRIFICED ALL THE TIME

By Jerry Okungu
Nairobi, Kenya
May 9, 2012

It has been one hell of a week; a week of high stakes and drama. All manner of hecklers and publicity seekers have been on the prowl craving for attention. They have used all manner of antics and theatrics to get noticed. Some of them with dubious character and background have certainly found an avenue to claim prime time spots on our local media, not because they had anything constructive to tell us but rather they managed to malign and vilify their opponents in the loudest voice they could master.

Take the case of the Mudavadi – Raila brick bats that started at the weekend; what was that all about? How come people who until a few weeks ago were the best of buddies could be so vicious all of a sudden? Much as the worst of the invectives did not come from the principal protagonists, their spokesmen and strategists played into one another’s hands and came out with eggs on their faces in equal measure. In the end they equally portrayed their principals in bad light.

Can we see better manners, more civilized and constructive exchanges in the near future among all presidential aspirants and their handlers? I guess so but I cannot promise you anything. This is Kenya where the politics of ideas and ideologies are in short supply. Our short-cut to fame and vote harvesting has never been on the platform of ideas or party manifestos because we have only one manifesto for all our forty plus political parties. They all want to fight corruption, build schools, roads, bridges, hospitals, houses, create jobs, upgrade slums and care for children and widows and of course grow the economy!

In this kind of scenario, it is easier to go for the jugular and mudsling your opponent as much as you can until the public cannot recognize the original human being.

However, there is a danger in exposing the skeletons in our neighbor’s closet. Chances are the law of velocity will most likely apply. And as they say, for every action, there is likely to be an equal and opposite reaction.
This principle in political terms is supported by the adage that says that those who live in glass houses should be weary of throwing stones at people who pass because a barrage of stones is likely to shatter their walls.

Kenya in the last 20 years has seen a litany of mega scandals most which have yet to be resolved. If you look at the Golden Berg, Anglo Leasing, Triton, Maize, Water, De La Rue, Grand Regency, Japan Embassy, Mau Forest, the recent National Housing Corporation, KPA appointments, Mavoko Cemetery, Free Primary Education Fund, KAA land scandal, the perennial NSSF litany of scandals, not to mention the NHIF saga; you can be sure that 98% of political leadership and top civil servants have been caught in crossfire or entangled in the web one way or another.

It is therefore more sensible to concentrate on what one’s presidency will do to the people of Kenya once elected rather than competing to vilify one another. This should be the modus operandi; the doctrine of restraint that should guide presidential candidates, their spokesmen and think tanks.

A good strategist should strive to floor his opponents on a platform of ideas, logical presentation and charisma while at the same time working hard to woo his opponent’s relatives, friends and family members. However, if you abuse and embarrass your opponent, chances are; you will alienate his relatives, friends and even clan and tribe. In such a situation you have lost substantial votes and reaped resentment.

The NHIF drama was even more disgusting this week to say the least. It had all the makings of high stakes political intrigue, backstabbing, bribery and brinkmanship. It also for the umpteenth time displayed to us the uglier side of a dysfunctional government where law, order, procedure and decency have been thrown through the window.

For how else can you explain the behavior of a chairman of a government corporation walking into the boardroom and single handedly announces to board members that he has sacked the CEO of the organization in disregard of the laid down procedure and protocols?

When you see a chairman of a public corporation and his deputy fighting over chairs and TV cameras in front of journalists, you have proof that both of them are not fit to be leaders.

When you see a junior minister calling a press conference to malign his boss in the boss’s absence, you know that all is lost. It is the lowest one can fall.
When you see a head of the civil service unprocedurally sacking the entire board and CEO of a government corporation, you know the law of the jungle has set in.

Any decent and functioning government all over the world must have the laid down procedures of hiring and firing civil servants and more importantly of investigating economic crimes, theft by servant and graft. It cannot be everybody’s job.

More so public servants should never be fired through the press. They deserve to have it in writing why you are firing them. Bosses are not gods to do as they wish with their employees. The people we love to sack have families and friends who care for them no matter how much we hate them or relish unleashing excessive powers on them.

Let us manage our politics and affairs of our nation like civilized and responsible men and women of this country.

jerryokungu@gmail.com

WHERE IS THE AU PRIORITY?

By Jerry Okungu
Nairobi, Kenya
May 9, 2012

It is yet another season of the usual AU ritual in Addis Ababa. Once more our honorable heads of state are soon meeting to consider their relationship with the much maligned international criminal court at The Hague.

Informed sources intimate that the Council of Minister s have the ICC as an item to be discussed and pass their recommendations for action by the full plenary of the AU heads of state summit.

With disgruntled member states such as Kenya and Sudan and backed by rogue states such as Zimbabwe and a few strong men with no good record of governance, chances of passing a resolution to pull out of the ICC en masse is not a far-fetched idea. This action will be music to the ears of Omar El Bashir, Bob Mugabe and Mwai Kibaki of Kenya.

Though President Kibaki is not a candidate for The Hague court, he has some of his most trusted and close confidantes charged in that court with crimes against humanity arising from the political violence that rocked Kenya in 2008. As it is, President Kibaki has used every trick in the book to get the cases transferred to Kenya with very little success.

With earlier shuttle diplomacy trips to African countries and the UN coming a cropper, several petitions have been lodged with the ICC to get it disqualify itself from hearing the two cases. One by one, these appeals have all failed, culminating in the trials of the four out of six suspects being confirmed.

The last such attempt was to get the EALA parliament to hurriedly debate and pass a motion agitating for the transfer of those cases to the East African Court of Justice. A week later a special summit of the EAC heads of state discussed the EALA motion and appeared to support the idea.

Hardly two weeks later, two developments took place at The Hague. First came the bad news that the appeal by the two accused to make an oral presentation against being tried at The Hague was denied. The court ruled that it had enough evidence to make a decision on the matter without having the accused appearing in person.

A day later, another terse statement came from The Hague ruling out any possibility of having Kenyan cases transferred to Arusha or any other court for that matter. And by that last development, it would appear like the door had been shut on the case.

The Sudan case is different. Omar El Bashir is accused of crimes against humanity based on the Darfur genocide carried out before 2009. He is accused of using his armed forces and Jangaweed militia to exterminate the black natives of Darfur purely on account of their ethnicity.

Bashir is not the only person indicted by the ICC. Some of his generals also stand accused. Bashir should have been tried by now but since 2009, he has continued to defy summons from the ICC. He has since been issued with a warrant of arrest. This development has made it impossible for him to travel outside Africa and even in the continent; his movements have been restricted to a few friendly countries. He can today not travel to Kenya, Malawi and South Africa. In Kenya, a local court has issued a warrant of arrest should he step on Kenyan soil.

It beats logic why the AU should be obsessed with criminal cases at the ICC when there are a myriad problems facing Africa. Here is a war going on between the same Bashir and his former Vice President Salva Kiir over oil fields in the South. That war is already sending thousands of refugees flocking into Kenya and Uganda. And with that renewed war, there already thousands of lives senselessly being lost; mainly helpless villagers with no air cover. Why can’t the AU spend its energies stopping this conflict?

The other nagging problem is the Joseph Kony riddle. Right now we have at least 100 American Special Forces tracking Kony in the forests of Central Africa and the DRC. Why can’t the AU spend its resources tracking down Kony and stop him from killing poor peasants in the forests of Central Africa?

As the AU meets this time, the war in Somalia is yet to be won despite the AMISOM support from the United Nations. AU member states are perennially constrained to contribute meaningful troops and resources to resolve the Somali crisis yet they find time to spend millions of scarce dollars every so often to attend summits with no tangible results for the continent.

As this summit gets under way, there is renewed conflict in DRC Congo sending thousands of refugees into Rwanda. Yet DRC, just like Somalia and South Sudan is a bona fide member of the AU. Don’t these war-torn countries deserve the full attention of the AU?

The world will only respect the decisions of the African body if it starts reigning in on its errant members, got rid of its many wars, fed its own people and decisively dealt with its many avoidable disasters. More importantly, if it started dealing conclusively with institutionalized corruption and kleptocracy in its ranks.
jerryokungu@gmail.com

GRASSROOTS JUSTICE IN RWANDA

By Africa Research Institute

The conviction of former Liberian president, Charles Taylor, by the Special Court for Sierra Leone has once again put the spotlight on the efficacy and objectives of international criminal tribunals. On the other side of the continent, in Rwanda, a radically different – and equally controversial – judicial process will conclude in June 2012. In How Rwanda judged its genocide, the latest publication in Africa Research Institute’s Counterpoints series, Dr Phil Clark scrutinises the gacaca community courts set up to prosecute crimes committed during the 1994 genocide.

The gacaca community courts have been the centrepiece of Rwanda’s justice and reconciliation process. In 2001, approximately 120,000 genocide suspects were detained in jails across Rwanda at a cost of US$20m a year. More than 10,000 people had died in detention since 1994. There were hardly any judges or lawyers left in the country after the genocide, and the judicial infrastructure was in ruins. Few countries have had to tackle the aftermath of a conflict in which hundreds of thousands were killed or injured by hundreds of thousands of their fellow citizens with such limited legal and financial resources.

The aims of gacaca were to prosecute every individual genocide suspect, regardless of seniority or social standing, and to begin the reconstruction and reconciliation of Rwandan society. Crucially, the process was designed to involve the people who experienced the genocide first-hand at every stage. Formally trained judges and lawyers were excluded from any official involvement. In 2002, gacaca was launched by the Rwandan government as “justice without lawyers”. More than 250,000 lay judges were elected by their communities in about 11,000 jurisdictions. As gacaca identified new suspects still at large, the number of people prosecuted swelled to 400,000.

Most international observers have fiercely opposed the use of gacaca courts for trying genocide crimes in Rwanda, claiming that they were ill-equipped to handle such complex cases fairly. This Counterpoint argues that such criticism reflects legal rigidity in the face of the unprecedented challenges confronting post-genocide Rwanda – and a limited understanding of the multiple aims of gacaca. The perspective stems from a narrow conception of justice based on the experiences of the Nuremberg and Toyko trials after World War II and subsequent tribunals – including the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Court (ICC).

As many as one million cases have been heard by gacaca courts in a decade, at a cost of US$40m, compared with the US$1 billion spent on 69 trials at the ICTR. Gacaca has inevitably been imperfect. Its shortcomings have included cases of corruption, bribery of judges and intimidation of witnesses. Some survivors have also been retraumatised. But the process was also highly innovative and delivered significant benefits. A vast genocide caseload was cleared. Popular participation during gacaca hearings was conducive to truth-telling and truth-hearing. As court proceedings were shaped by local communities, vigorous political exchange often ensued. Phil Clark asserts that other societies confronting the aftermath can learn much from the achievements of gacaca – as well as its flaws and pitfalls.

“There are serious questions we must ask about the appropriate responses to mass conflict”, said Phil Clark at the launch of How Rwanda judged its genocide at Africa Research Institute in London. “Critiques of gacaca have been vociferous since day one. But critics have ignored one of its greatest assets, namely that Rwandans have been able to talk about the genocide, and its impact, on their own terms, in a language that is familiar to them”.