When, following the Second World War, the surviving Nazi and Japanese leaders, were arraigned in military courts to face charges of, amongst others, crimes against humanity, Chief Prosecutor Robert Jackson described the trials as “one of the most important tributes that Power has ever paid to Reason”. However, given that only crimes of the Axis Powers could be tried and that it was not a defence to argue that the Allies had done many of the same things the Axis Powers were being accused of, "one of the most important tributes that Power has ever paid to Reason” turned out to be little more than victors' justice.
Last week, we witnessed another example of victors’ justice in a crimes against humanity trial. International Criminal Court prosecutor, Fatou Bensouda, surprised no one with the admission that the case against President Uhuru Kenyatta with regard to the 2007-08 post-election violence had practically collapsed. It perhaps was never a strong case to begin with and the ICC’s dismal track record in securing convictions does not inspire much confidence. However, it would be hard to deny that the death knell for the case was rung on the day Uhuru and his fellow indictee, William Ruto, won the elections and ascended to the highest office in the land.
The campaign that followed, which sought to intimidate both the court and its witnesses, was unprecedented in its ferocity. And it succeeded. Many of the witnesses had sudden changes of heart or experienced what can only be described as an attack of conscience - previously suppressed memories of being bribed and coached abruptly surfaced. At the same time cartels were said to be hunting witnesses down, the government was expending huge amounts of time as well as diplomatic and fiscal resources trying to stop the trial and ignoring the constitution. Specifically Article 143(4), which expressly allowed for the prosecution of a sitting president.
As the President looks set to cast aside the “personal challenge” he has succeeded in masquerading as a national problem, similar things are happening in his deputy’s case. Meanwhile, we long ago learnt that the other 4,500 pending PEV cases meant to be prosecuted locally had similarly collapsed. The rub of it is that no one will now be held responsible for the deaths of 1,200 Kenyans and the maiming and displacement of hundreds of thousands of others.
Such impunity is, of course, nothing new in Kenya. In fact, it was because of our scepticism over the ability of the local justice system to deal with our high and mighty that many were ready to say: “Let’s not be vague: It’s the Hague.” However, when it came down to it, our incestuous elite closed ranks to protect one of their own. Nary a voice was raised, even in the opposition, when the state subverted the constitution, refused to cooperate with the ICC and failed in its duty to protect witnesses. In fact, even before the election, Uhuru’s bitter rival, Raila Odinga, had promised to scuttle the ICC trials if he won. Few politicians on either side are perturbed by the failure to prosecute more than a handful of PEV-related cases.
The collapse of these PEV cases, both locally and at the ICC, is profoundly depressing because it reinforces the disposability of Kenyan lives. The fact is, from the dawn of our history, Kenyans have been regularly slaughtered in large numbers, mostly at the behest of our ruling elites who picked up their bad habits from the colonials. And throughout, impunity has been the order of the day. The Indemnity Act, for example, gives blanket immunity to all government personnel for crimes committed against the population of North Eastern during the Shifta War in which up to 7,000 people died. No one has been held responsible for the many subsequent massacres in the same region nor for the government-instigated mass killings and displacements in the 1990s. According to the Kenya Human Rights Commission, “from 1991 to 1996, more than 15,000 people died and almost 300,000 were displaced in Rift Valley, Nyanza and Western. In the run-up to the 1997 elections, fresh violence erupted on the Coast, killing more than 100 people and displacing over 100,000."
Rather, the men on whose watch many of these murders and displacements occurred are today feted, both in death and in life. Within the last month we have solemnly marked 36 years after the death of President Kenyatta and celebrated President Moi’s 90th birthday. At these anniversaries, the many victims of their brutal rule remained conveniently hidden and forgotten, their lives and suffering as cheap today as it was when it was inflicted.
The fact that Kenya refuses to demand justice for its people is the most telling sign of how low our lives are esteemed. The fact that our people die nameless and are displaced in nice round numbers is a reminder of our individual insignificance. There are no monuments to remind us of those we have sacrificed for our elites, save for the hidden camps for the displaced whose existence the government is quite happy to deny. For most of the time they are invisible, their unending suffering rendered meaningless. Even during the ICC trials, they have mostly remained unseen.
The ease with which we have forsaken our brothers and sisters does not bode well for the future. The charge of “crimes against humanity” was first articulated in reference to the Armenian Genocide of 1915-18. However, the Turks were never formerly prosecuted under international law. This failure to hold them to account paved the way for the Nazi Holocaust. As Adolf Hitler rhetorically asked his generals: “Who today still speaks of the Armenians?”
Who today will speak of the Kenyans?