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Posted by African Press International on December 15, 2010

Having my say: By David ochwangi
It is finally here, the day Kenya’s Post Election Violence perpetrators are unmasked before the whole world at the ICC; to majority of Kenyans, this will be early Christmas for a nation desperately trying to turn a new leaf away from its checkered past. We all know what the imminent indictment by ICC prosecutor Luis Moreno Ocampo is about, to hold those most responsible for the PEV to account and its only befitting that the wheels of justice abound during this festive season, after all the injustices for which we desperately seek remedy were committed during the Holidays. Speculation is coming to an end, questions as to whether or not the ICC will be fair and neutral will soon be answered; whether or not Ocampo will use his immense global power and prosecutorial discretion indiscriminately and balance the scales of justice without bias or favor will also be on the table just as will be the credibility of the court so much at stake at once
and yet this is requisite for Kenya to move forward.
If Ocampo bangles this thing and falls to the whims of international politics and pressures, Kenya’s odyssey into the abyss could only unravel. He has said it repeatedly himself, i.e. that he is not a political prosecutor but rather a criminal prosecutor; Kenyans by and large revere him and agree with him, especially the victims and their families; we also agree that bungled election results are NOT a license to kill, rape, maim and displace populations as some want us to believe, the question now remains, will Ocampo deliver? Will Ocampo succumb to political pressure and try to shield some people and sweep ills under the rug or will he actually use the same vigor he employed against El Bashir, Taylor, etc? Will he be fair and free of global political influence? Will Lady Justice remain neutral, impartial and truly blind? Will Ocampo exercise his prosecutorial discretion without fear or favor and preserve Kenya’s fragile peace albeit superficial as it is; because folks, short of full and complete justice- Kenya risks falling way off the cliff in a manner that will make 2007/2008 fiasco look like a cake walk at the park.
I don’t think there is any amount of anti-hate legislation that can ameliorate the negative ethnicity which, unfortunately, took root as a result of the PEV. We will be deluding ourselves to think Ocampo, God forbid, picks just a few individuals to make an example of to the world while those actually responsible get a pass, it will be an indelible error of judgment whose repercussions would be worse than any remedy they portend to provide the country to heal herself.  I think at this point we as a nation must come to terms with reality; that we canâ?Tt shy away from our own demons or wish them away or be intimidated to speak up out of fear of the powerful in society; we must call it for what it is and get things out of our chests and not allow them to fester and stew only to blow up at election time, this is it folks, the time is now and let us play our part to start over, a clean slate and cleanse our nation- once and for all.  Let’s get these issues out in the open NOW, not later, NOW! Speak up folks, do not be muzzled, JUSTICE for ALL or NONE at all!

First off, let’s all agree nobody is above the law or exempt from justice on account of their position in society, the ICC has done a great job thus far in demonstrating to the world its reach by indicting Sudan’s El Bashir, Liberia’s Charles Taylor, The Balkans’ Milosevic, etc, etc. Kenya’s case presents unique challenges in the sense that, unlike in the above examples where these leaders are accused of systematically overseeing the decimation of populations within their borders,  President Kibaki was thrust in front of a one-off uprising and riots of which he was lawfully expected and constitutionally required to employ the instruments of power to suppress and restore law and order; therefore, Ocampo must convince the judges at the Hague that the state, at the direction of President Kibaki, intentionally acted so recklessly and so unconscionably as to exceed the state’s sovereign right to maintain peace and thereby meet the Roman threshold of crimes against humanity, it is a tough standard and for that reason, I think President Kibaki is clearly off Ocampo’s radar screen. Some have argued that meetings were held in State House during the mayhem ostensibly to plan the violence, really? Even granting this as true, without hard evidence it is hard to implicate the president, the president conducts his state functions at Harambee House and State House interchangeably, so it is not unusual much less incriminating that the President held meetings at State House.  Besides, a President who has just been declared a winner in a close election clearly has neither motive nor incentive to order the spilling of innocent blood. Why? What for? It does not make sense and therefore completely lacks merit. PERIOD, END OF STORY!
As a party, PNU was not predisposed to incite the public much less plan for violence. It won the election! Nonetheless, PNU clearly underestimated the uproar from ODM about the Presidential elections outcome and was quickly put on the defensive but miserably failed to logically counter the silliness of ODM accusations; if anything, PNU is clearly guilty of its own omissions and unpreparedness, an opening exploited by ODM and which only fuelled ODM’s onslaught and incendiary public incitement.  PNU is guilty of being declared the winner and failing to competently defend itself in the public square, a pathetic situation and yet not a crime per se.
Those in PNU on Ocampo’s crosshairs are accused of planning retaliatory reprisals against ODM aligned ethnic groups; even though one can argue that in the hit of the moment and without a clear way out as it was then, PNU had to take a defensive posture if only to mitigate the human losses of its supporters spread around the country and whereas there is a case to be made that the leadership was caught between a rock and a hard place; its actions invariably crossed the line in the eyes of the ICC and they must also answer for their actions; they had a motive to plan and defend their people through reprisals a NO, NO- legally. So, sorry- deal with it.
Oh Jesus! This is the epitome of the inexplicable. Let me start with the PM, Raila Amolo Odinga; Odinga is a tenacious leader who unfortunately lacks tact and is a victim of his own missteps and impulsion, he has demonstrated over the years, time and time again, that he acts and says things without carefully thinking through first and in his position as a leader with such a national following, is dangerous. There are plenty of examples but for the purposes of the scope of the ICC, let me confine myself to 2007/208 PEV.
It is no secret that PM Odinga played a crucial role in Kibaki’s election in 2002 only to be betrayed shortly thereafter, be that as it may, so is politics. He was and still is a wounded man and when it became clear that the road to State House had narrowed considerably every passing day, he became ever more desperate and sought to whip up public emotions against the Kibaki administration way before the 2007 elections; it didn’t help matters that soon after taking office, Kibaki purged most of former President Moi’s staffers in government most of them Kalenjin, and replaced them with what appeared to be his tribesmen, the Kikuyus. Subsequently, Odinga saw an opportunity in this turn of events and aligned himself with his erstwhile nemesis of the Moi era (the doctrine of the enemy of my enemy is my friend fit perfectly); this would have been perfectly legit but for the fact that at that moment the foundation for ethnic cleansing in Kenya was born.
Fast forward to the 2007 elections;- Odinga knew the results were a cliff hanger after Kalonzo had peeled away a sizeable number of voters from the original ODM; he had managed to turn a considerable electorate against Kibaki along ethnic lines; for example, William Ruto, clearly led the charge in Rift Valley of instigating prejudice against Kisiis and Kikuyus and so when the election results were announced, this anti Kikuyu/Kisii arsenal at his disposal was activated at a moment’s notice, he used it to his maximum benefit personally but unfortunately to the detriment of the nation as a whole. PM Odinga alias Arap Mibei explicitly called for MASS ACTION to protest the â?ostolen election Odinga knew or should have known that such calls would result in violence but he did it anyway, repeatedly, and for that reason he must share the burden of the outcome of his calls. Paradoxically, the areas most affected by these protests were Rift Valley and Luo Nyanza, areas in which Odinga won handily almost to the last vote and therefore had the least reason or purpose to incite the public against fellow citizens (MADOADOA as they were referred to by ODM during the campaigns) unless of course to make a statement- it is premeditated!
There is clearly, at the very minimum, a case for implied malice on his part for which constructive criminal liability attached for the purposes of the ICC. He and his estranged bed fellow William Ruto were on the same side of the battlefield, they campaigned and planned together, and they conspired together, before, during and after the general elections and I don’t get it now why and how Ruto would bear a higher burden in this than his friend the PM! I just don’t get it. Raila was the man running for President, not Ruto; besides his relatives and friends, the PM is the single greatest beneficiary of MASS ACTION, he wields executive authority; the same cannot be said of the dead, the raped many of whom contracted deadly diseases, the maimed, the displaced, the IDPs, Ruto, the PEV suspects in jail/remand- none of these people has anywhere near the rewards brought about by the calls for MASS ACTION as PM Odinga and therefore, truth be told, in balance and taking into account the Sum Total of his actions, before, during and after, PM Odinga bears the greatest responsibility for the 2007/2008 PEV in Kenya. The Prime Minister’s office in Kenya is drenched in innocent blood and it is a great thing it is going away. Raila, Ruto, Balala, Kosgey, Kones, Laboso and many others are on record inflaming the public and when the dust settled, they strenuously defended the suspects, they said they didn’t do anything wrong because they were chasing their stolen cows, they tried to manipulate the ICC just as they did the Kenyan public; well guys – to those of you still around anyway, time is up, you can’t fool the world all the time. Time to pay is now.


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