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Kenya: Justice for the victims, and the nation

Dec 22, 2014

from the article by Ndung’u Gethenji in New Vision:

In post-conflict countries, like Kenya in 2008, there are almost never clear winners in the showdown. Thank God for that: such victory usually follows genocide or mass murder, where one side is annihilated. Instead of such murderous clarity, millions of Kenyans must find the political accommodation that secures the sanctity, society and continuity of the nation.

That approach is recognised worldwide as a fundamental practice for protecting a fragile peace. The 2004 Report of the UN Secretary-General on ``The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies' asserts that ``we must learn to eschew one-size-fits-all formulas and the importation of foreign models, and, instead, base our support on national assessments, national participation and national needs and aspirations'.  The Secretary-General goes on to support the ICC's existence as a necessary part of the array of approaches to finding justice and peace.

Indeed, even the Rome Statute that established the court left room for the prosecutor to take a nuanced and politically wise course. This is especially the case where the prosecutor, as happened in Kenya, had discretion in taking up the case. Article 53 of the Rome Statute provides that before deciding to initiate an investigation, the Prosecutor should determine whether crimes have been committed; he should also determine whether there are substantial reasons to think that `an investigation would not serve the interests of justice'. 

This opens the door for the prosecutor to exercise wisdom by looking beyond the retributive model. He might consider broader conceptions of justice, such as the importance of protecting a fragile peace, and the hard-fought gains of an emerging democracy – or, indeed, the importance of the culture of restorative justice in a given society. These matters are reflected in a survey conducted by Uganda's Refugee Law Project, which showed majority support for amnesty in the case against the brutal Lord's Resistance Army, and opposition in the victim community to the ICC’s intervention.

Unfortunately, in Kenya, the Prosecutor prioritised above all else an abstract, emotive concept of `victim's interest' as the moral basis for the cases. That mantra obscured the profoundly important goal of preventing renewed conflict. This is no theoretical point: over half the countries that have suffered violent civil conflict revert to violence within a decade. 

In Kenya, the reconciliation of warring communities gave the country room to realize sweeping constitutional and institutional reforms. Mr Moreno-Ocampo might have been considered these facts when considering whether to bring the cases to the court.

Read the whole article.

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