''All that is necessary for the triumph of evil is that good men do nothing'' - Edmund Burke


S I E R R A  H E R A L D

Vol 10 No 2

The tendency sometimes to protect perpetrators for the sake of peace...doesn't help society. Impunity should not be allowed to stand. - Kofi Annan on Waki report

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Chair of the African Union, Prime Minister Hailemariam Dessalegn, Chair of the Commission of the African Union, Dr Nkosazana Dlamini-Zuma, Colleagues Head of State and Government, Distinguished Ladies and Gentlemen, It gives me special pleasure to join your Excellencies at this Special Summit, where we have assembled to reflect on very significant matters relating to the welfare and destiny of our nations and peoples.

I thank you for the honour of addressing you today, because as it happens, I crave my brother and sister Excellencies' views on some issues. We are privileged to lead the nations of a continent on the rise. Africa rests at the centre of global focus as the continent of the future. Although we have been relentlessly exploited in the past, we remain with sufficient resources to invest in a prosperous future. Whilst we have been divided and incited against one another before, we are now united and more peaceful.

Even as we grapple with a few regional conflicts, as Africans, we are taking proactive measures to ensure that all our people move together in the journey to prosperity in a peaceful home. Even though we were dominated and controlled by imperialists and colonial interests in years gone by, we are now proud, independent and sovereign nations and people. We are looking to the future with hope, marching towards the horizon with confidence and working in unity.

This is the self evident promise that Africa holds for its people today. As leaders, we are the heirs of freedom fighters, and our founding fathers. These liberation heroes founded the Organisation of African Unity, which was dedicated to the eradication of ALL FORMS OF COLONIALSM. Towards this end, the OAU defended the interests of independent nations and helped the cause of those that were still colonised. It sought to prevent member states from being controlled once again by outsider powers.

The founding fathers of African Unity were conscious that structural colonialism takes many forms, some blatant and extreme, like apartheid, while others are subtler and deceptively innocuous, like some forms of development assistance. It has been necessary, therefore, for African leaders to constantly watch out against threats to our peoples' sovereignty and unity.

In our generation, we have honoured our fathers' legacies by guaranteeing that through the African Union, our countries and our people shall achieve greater unity, and that the sovereignty, territorial integrity and independence of our States shall not be trifled with. More than ever, our destiny is in our hands. Yet at the same time, more than ever, it is imperative for us to be vigilant against the persistent machinations of outsiders who desire to control that destiny. We know what this does to our nations and people: subjugation and suffering.

Your Excellencies, The philosophies, ideologies, structures and institutions that visited misery upon millions for centuries ultimately harm their perpetrators. Thus the imperial exploiter crashes into the pits of penury. The arrogant world police is crippled by shambolic domestic dysfunction. These are the spectacles of Western decline we are witnessing today. At the same time, other nations and continents rise and prosper. Africa and Asia continue to thrive, with their promise growing every passing day. As our strength multiplies, and our unity gets deeper, those who want to control and exploit us become more desperate. Therefore, they abuse whatever power remains in their control.

The Swahili people say that one ascending a ladder cannot hold hands with one descending. The force of gravity will be compounded and the one going up only loses.

The International Criminal Court was mandated to accomplish these objectives by bringing to justice those criminal perpetrators who bear greatest responsibility for crimes. Looking at the world in the past, at that time and even now, it was clear that there have always been instances of unconscionable impunity and atrocity that demand a concerted international response, and that there are vulnerable, helpless victims of these crimes who require justice as a matter of right. This is the understanding, and the expectation of most signatories to the Rome Statute. The most active global powers of the time declined to ratify the Treaty, or withdrew somewhere along the way, citing several compelling grounds.

The British foreign secretary Robin Cook said at the time, that the International Criminal Court was not set up to bring to book Prime Ministers of the United Kingdom or Presidents of the United States. Had someone other than a Western leader said those fateful words, the word 'impunity' would have been thrown at them with an emphatic alacrity. An American senator serving on the foreign relations committee echoed the British sentiments and said, "Our concern is that this is a court that is irreparably flawed, that is created with an independent prosecutor, with no checks and balances on his power, answerable to no state institution, and that this court is going to be used for politicized prosecutions."

The understanding of the States which subscribed to the Treaty in good faith was two-fold. First, that world powers were hesitant to a process that might make them accountable for such spectacularly criminal international adventures as the wars in Iraq, Syria, Libya, Afghanistan and other places, and such hideous enterprises as renditions and torture. Such states did not, therefore, consider such warnings as applicable to pacific and friendly parties. Secondly, it was the understanding of good-faith subscribers that the ICC would administer and secure justice in a fair, impartial and independent manner and, as an international court, bring accountability to situations and perpetrators everywhere in the world. As well, it was hoped that the ICC would set the highest standards of justice and judicial processes.

Your Excellencies, As has been demonstrated quite thoroughly over the past decade, the good-faith subscribers had fallen prey to their high-mindedness and idealism. I do not need to tell your Excellencies about the nightmare my country in particular, and myself and my Deputy as individuals, have had to endure in making this realisation. Western powers are the key drivers of the ICC process. They have used prosecutions as ruses and bait to pressure Kenyan leadership into adopting, or renouncing various positions. Close to 70 per cent of the Court's annual budget is funded by the European Union. The threat of prosecution usually suffices to have pliant countries execute policies favourable to these countries. Through it, regime-change sleights of hand have been attempted in Africa. A number of them have succeeded.

The Office of the Prosecutor made certain categorical pronouncements regarding eligibility for leadership of candidates in Kenya's last general election. Only a fortnight ago, the Prosecutor proposed undemocratic and unconstitutional adjustments to the Kenyan Presidency. These interventions go beyond interference in the internal affairs of a sovereign State. They constitute a fetid insult to Kenya and Africa. African sovereignty means nothing to the ICC and its patrons. They also dovetail altogether too conveniently with the warnings given to Kenyans just before the last elections: choices have consequences. This chorus was led by the USA, Britain, EU, and certain eminent persons in global affairs. It was a threat made to Kenyans against electing my Government. My Government's decisive election must be seen as a categorical rebuke by the people of Kenya of those who wished to interfere with our internal affairs and infringe our sovereignty.

Now Kenya has undergone numerous problems since its birth as a Republic 50 years ago. Yet over the same period, Kenya has also made tremendous progress. It is the same in all countries of Africa. At our Golden Jubilee, we look forward to a rebirth characterising the next 50 years, not a ceaseless harkening to our history. I must make the point that we do not intend to forget, or discount the value of our history. Rather, we do want to learn from it, not live in it. As Kenya's President, it gives me a feeling of deep and lasting pride to know that I can count on the African Union to listen and help in trying times. Africa has always stood by our side.

When we faced violent disagreements over the 2007 election result, my distinguished predecessor, Mwai Kibaki came to you with a request for help, and you did not stint. You instituted a high-level team of Eminent Persons who came to our assistance. Because of that, we were able to summon the confidence to speak to each other and agree. As a result, we put in place a 4-point plan, which not only put Kenya back on track, but formed the basis of the most rapid political, legal and social reform ever witnessed in our country. Through it, we successfully mediated the dispute surrounding the 2007 election and pacified the country. A power-sharing coalition was formed with a mandate to undertake far-reaching measures to prevent future violent disputes, entrench the rule of law, prevent abuses of legal power and entrench equity in our body politic while also securing justice for the victims of the post-election violence.

We enacted a new, progressive constitution which instituted Devolution of power and resources, strengthened the protection of fundamental rights, and enhanced institutional and political checks and balances. It also provided the legal foundation for the national economic transformation roadmap, Vision 2030. The project of national transformation presently underway in Kenya was given tremendous impetus by your Excellencies' needful intervention. On the basis of this constitution we have instituted legislation and established institutions to realise the people's basic rights, ensure transparency and accountability and protect the popular sovereignty of Kenyans. A new Judiciary and electoral commission have ensured that we have credible elections and dispute resolution.

Your Excellencies, The people of Ethiopia warn against the deplorable presumption of chopping up meat for a lion; I cannot teach you your work, nor force you to accept my position. Please institute a mechanism to empirically verify what I have told you. My part is to thank you on behalf of the people of Kenya for your help. After the successful mediation of the post-election controversy in 2008, there was disagreement over the best way to bring the perpetrators of post-election violence to account and secure justice for the victims.

One proposal was to set up a local tribunal to try the cases, while another was to refer the matter to the ICC. The Mediator who had been appointed by your Excellencies referred the matter to the ICC when the disagreement persisted. On the basis of this referral, the Prosecutor stated that he had launched investigations which, he claimed, established that 6 persons had committed crimes against humanity. According to the Prosecutor, your Excellencies, I fall among those men.

Your Excellencies,
From the beginning of the cases, I have fully cooperated with the Court in the earnest expectation that it afforded the best opportunity for me to clear my name. I have attended court whenever required and complied with every requirement made of me in connection with my case. Other Kenyans charged before that court have similarly cooperated fully. The Government has cooperated to the maximum; the Court itself found that Kenya's Government has fully complied in 33 out of 37 instances, and was only prevented from cooperating 100 per cent by legal and constitutional constraints.

After my election, we have continued to fully cooperate. As earlier stated, we see it as the only means to achieve personal vindication, but also to protect our country from prejudice. As I address your Excellencies, my deputy is sitting - in person - in that Court. Proceedings continue revealing the evidence against us to be reckless figments and fabrications every passing day. I cannot narrate quite accurately the calculated humiliation and stigma the prosecution has inflicted on us at every turn, within and outside the proceedings. It is all consistent with a political agenda, rather than a quest for justice. For 5 years I have strained to cooperate fully, and have consistently beseeched the Court to expedite the cases. Yet the gratuitous libel and prejudice I have encountered at the instance of the Prosecution seeks to present me as a fugitive from justice who is guilty as charged. All I have requested as President is to be allowed to execute my constitutional obligations as the forensic side of things is handled by my lawyers.

Even as we maintain our innocence, it has always been my position, shared by my deputy, that the events of 2007 represented the worst embarrassment to us as a nation, and a shock to our self-belief. We almost commenced the rapid descent down the precipitous slope of destruction and anarchy. Its aftermath was similarly an unbearable shame. We are a people who properly take pride in our achievements and our journey as a nation. The fact that over that time we had lost direction, however briefly, was traumatising. That is the genesis of our rebirth. Until our ascension to the Presidency of Kenya, thousands of internally-displaced persons remained in camps.

It is generally difficult to resettle many people owing to scarcity of land and sensitivity to their preference. But we have undertaken to ensure that no Kenyan will be left behind in our journey to progress. Resettling the IDP therefore was a particularly urgent assignment for us. Within 6 months of assuming office, we resettled all of them, and closed the displacement camps for good. Our efforts at pacifying the main protagonists in the PEV have similarly borne fruit. So much so, that the reconciliation efforts gave birth to a successful political movement which won the last general election. This not only speaks to the success of reconciliation, but also testifies to its popular endorsement by the majority of the people of Kenya.

We certainly do not bear responsibility at any level for the post-election violence of 2007, but as leaders, we felt it incumbent upon us to bear responsibility for reconciliation and leadership of peace. Our Government wants to lead Kenya to prosperity founded on national stability and security. Peace is indispensable to this aspiration. Reconciliation, therefore was not merely good politics; it is key to everything we want to achieve as a Government.

Your Excellencies,
America and Britain do not have to worry about accountability for international crimes. Although certain norms of international law are deemed peremptory, this only applies to non-Western states. Otherwise, they are inert. It is this double standard and the overt politicisation of the ICC that should be of concern to us here today. It is the fact that this court performs on the cue of European and American governments against the sovereignty of African States and peoples that should outrage us. People have termed this situation "race-hunting". I find great difficulty adjudging them wrong.

What is the fate of International Justice? I daresay that it has lost support owing to the subversive machinations of its key proponents. Cynicism has no place in justice. Yet it takes no mean amount of selfish and malevolent calculation to mutate a quest for accountability on the basis of truth, into a hunger for dramatic sacrifices to advance
geopolitical ends. The ICC has been reduced into a painfully farcical pantomime, a travesty that adds insult to the injury of victims. It stopped being the home of justice the day it became the toy of declining imperial powers.

This is the circumstance which today compels us to agree with the reasons US, China, Israel, India and other non-signatory States hold for abstaining from the Rome Treaty. In particular, the very accurate observations of John R Bolton who said, "For numerous reasons, the United States decided that the ICC had unacceptable consequences for our national sovereignty. Specifically, the ICC is an organization that runs contrary to fundamental American precepts and basic constitutional principles of popular sovereignty, checks and balances and national independence."

Our mandate as AU, and as individual African States is to protect our own and each other's independence and sovereignty. The USA and other nations abstained out of fear. Our misgivings are born of bitter experience. Africa is not a third-rate territory of second-class peoples. We are not a project, or experiment of outsiders. It was always impossible for us to uncritically internalise notions of justice implanted through that most unjust of institutions: colonialism.

The West sees no irony in preaching justice to a people they have disenfranchised, exploited, taxed and brutalised. Our history serves us well: we must distrust the blandishments of those who have drunk out of the poisoned fountain of imperialism. The spirit of African pride and sovereignty has withstood centuries of severe tribulation. I invoke that spirit of freedom and unity today before you. It is a spirit with a voice that rings through all generations of human history. It is the eternal voice of a majestic spirit which will never die.

Kenya is striving mightily, and wants to work with its neighbours and friends everywhere to attain a better home, region and world. Kenya seeks to be treated with dignity as a proud member of the community of nations which has contributed immensely, with limited resources, to the achievement of peace, security and multilateralism. Kenya looks to her friends in time of need. We come to you to vindicate our independence and sovereignty. Our unity is not a lie. The African Union is not an illusion.

The philosophy of divide-and rule, which worked against us all those years before, cannot shackle us to the ground in our Season of Renaissance. Our individual and collective sovereignty requires us to take charge of our destiny, and fashion African solutions to African problems. It will be disingenuous, Excellencies, to pretend that there is no concern, if not outrage, over the manner in which ICC has handled not just the Kenyan, but all cases before it. All the cases currently before it arise from Africa.

Yet Africa is not the only continent where international crimes are being committed. Out of over 30 cases before the court, NONE relates to a situation outside Africa. All the people indicted before that court, ever since its founding have been Africans. Every plea we have made to be heard before that court has landed upon deaf ears. When Your Excellenciesí resolution was communicated to the Court through a letter to its president, it was dismissed as not being properly before the Court and therefore ineligible for consideration. When a civil society organisation wrote a letter bearing sensational and prejudicial fabrications, the Court took urgent and substantial decisions based on it. Before the ICC, African sovereign nationsí resolutions are NOTHING compared with the opinions of civil society activists.

The AU is the bastion of African sovereignty, and the vanguard of our unity. Yet the ICC deems it altogether unworthy of the minutest consideration. Presidents Kikwete, Museveni, Jonathan and Zuma have pronounced themselves on the courtís insensitivity, arrogance and disrespect. Leaders in my country have escalated their anxiety to the national Parliament, where a legislative process to withdraw altogether from the Rome Treaty is under consideration. As I said, it would not be right to ignore the fact that concern over the conduct of the ICC is strong and widespread.

There is very little that remains for me to say about the slights that the ICC continue to visit upon the nations and people of Africa. We want to believe in due process before the ICC, but where is it being demonstrated? We want to see the ICC as fair and even-handed throughout the world, but what can we do when everyone but Africa is exempt from accountability? We would love nothing more than to have an international forum for justice and accountability, but what choice do we have when we get only bias and race-hunting at the ICC? Isnít respect part of justice? Arenít our sovereign institutions worthy of deference within the framework of international law? If so, what justice can be rendered by a court which disregards our views? Our mandate is clear: sovereignty and unity. This is the forum for us to unite and categorically vindicate our sovereignty.

Excellencies, I turn to you trusting that we will be faithful to our charge, to each other, and to our people. I have utmost confidence that this Assemblyís voice will be clear to the entire world. Like other African countries, Kenya did not achieve its independence with ease. Blood was shed for it.

Your Excellencies,

I thank you. God Bless you. God Bless Africa.

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