MWANGI: ICC cant deliver justice; who will rescue victims of dictatorship?

By Isaac Mwangi, Arusha, Tanzania

For all those who had hoped that justice would finally be served, nothing but a bitter taste in the mouth was left following the decision by the Appeals Chamber of the International Criminal Court to reject the use of recanted evidence.

This was in the remaining Kenyan case at The Hague involving Deputy President William Ruto and former radio journalist Joshua arap Sang. This case has now been significantly weakened, and it is doubtful whether the weight of evidence will be sufficient to obtain a conviction.

The long-drawn diplomatic battle by Kenya to have the case withdrawn, or to deny it of the much-needed recanted evidence, shrouded the much more fundamental issue of justice for the victims. Conversely, it appeared to sanction impunity and entrench the perception that crimes could go unpunished at the altar of political expediency.

Much as the rights of accused persons must be respected and safeguarded, the international court appeared to elevate procedural issues above matters of substance. The question is, if there is substantial evidence of any nature about a crime, should a court of law give greater weight to the verification and plausibility of that evidence, or merely to whether such evidence happened to have been obtained before or after a certain date?

In this particular case, November 2013 seemed to have been that magic date. That means the merits or demerits of the evidence itself can no longer be weighed. Yet, if the accused in this or any other case want to showcase their innocence, it may be that the most convincing way would be to face any evidence and interrogate it rather than block the presentation of such evidence.

Perhaps, the rationale behind all this is a matter best left to legal philosophers. The question that is no doubt left in the minds of observers, however, is why any innocent person would want to block incriminating evidence. Moreover, where does all this leave the victims of Kenya’s post-election violence? What signals does it send as far as the issue of impunity in Kenya and the region is concerned?

The recent African Union heads of state summit endorsed a common stand by the continent against the ICC, further complicating matters. The feeling has been that the court is biased against Africans, an argument that is not entirely without merit. After all, terrible atrocities have been committed by Western leaders in the Middle East and elsewhere, yet none of the leaders of these major powers has had the indignity of being put in the dock.

But the failure of others cannot be the yardstick with which to measure ourselves. Failure to prosecute a thief elsewhere is no excuse to tolerate thieves in our midst. What Africa and other countries should be fighting for, then, is a system that allows all thieves to be brought to book or, alternatively, a system that enables us to deal with the criminals in our midst right here.

The proposal to set up an African Court to deal with crimes against humanity, unfortunately, has received little support from the continent’s leaders. Faced with this situation, the peoples of the continent are faced with a stark choice: Adhere to The Hague, with all its weaknesses and biases, or be doomed to merciless dictatorships. Needless to say, The Hague is the more attractive choice.

Now that this court, too, has proved that it cares more about semantics and procedural issues, it is back to the drawing board for those who seek justice for victims. With the message that impunity can go unpunished, victims will have to shut up or seek alternative avenues of redress. The message that political blocs can influence the justice process of an international court has been heard loud and clear.

So, why would Burundi President Pierre Nkurunziza care about the people being killed on the streets of Bujumbura? Why would Ugandan President Yoweri Museveni care? Why would anybody from Kenya to the Central African Republic and beyond be bothered about justice, when the pursuit of political power at all costs bears better dividends? Given recent trends in the region, the collapse – or at the very least unworkability – of the international justice system is very worrying indeed. The consequences for Africa are grave.