Monthly Archives: February 2014

Never Again – Until Next Time

Back in September of 2013, I wrote a piece titled “The Hague Imefika” or “The Hague Has Arrived” where in response to the erratic commencement of the crimes against humanity cases against the three Kenyans charged, I offered that the cases against the deputy president Mr. Ruto could have started out “much smoother” and that Ms. Fatou Bensouda appeared “unprepared” to begin the cases. I also wrote that the high-priced lawyers, especially the ones representing the two principals, may successfully argue dismissal (of the cases); even acquittal for both the president and his deputy.

In this updated reading of the tea leaves, I am offering that several recent developments all point to the possibility I reluctantly theorized late last year when the trials begun: That one of the two principals may be acquitted or have their case fully dismissed based on the following:

  • The January decision by the Chief Prosecutor to adjourn the case against Mr. Kenyatta, ostensibly to give her time to “obtain additional evidence and consider whether such evidence will fully meet the evidentiary threshold required at trial”.
  • The recently announced sequence of meetings held by the court during late January and early February 2014, not to mention the one scheduled for Thursday, February 13.
  • The recent announcement that suspect Mr. Kenyatta is “said to be on the invitation list” for the inaugural US-Africa Leaders’ Summit in Washington.
  • The apathetic mood of Kenyans, indeed Africans, towards the ICC: The accused may be scoundrels but they are OUR scoundrels!

Given the foregoing, it is my opinion that the case against the senior half of the digital duo may be dropped for reasons that have very little to do with Mr. Kenyatta’s innocence and more to do with the politicization of the case as recently conceded by Mr. Ocampo; a scenario most Kenyans should be fully familiar with and that is always in the background in such high profile cases. Additionally, Mr. Kenyatta’s case may be dropped because he and his deputy Mr. Ruto were able to form a convenient and timely union – “coalition of the accused” – between their two populous communities and ride the “tyranny of numbers” to the 2012 presidency and deputy presidency respectively. The move was a masterstroke that dared their accuser – International Criminal Court (ICC) – to prosecute a sitting president and his deputy, the former a son of one of the founding members of Pan-African Movement. Calling their bluff and doing just that put the international organization in the crosshairs of the African Union (AU), an organization with a membership whose conduct, past and present, made the (ICC) court necessary. Sensing that they could be next, the big men of the AU formed yet another union aptly called “coalition of the threatened” less from the desire to do the right thing for their subjects and more out of self-preservation. The rest as they say is history.

As much as I was hoping for all the cases facing the Kenyan suspects to proceed i.e. be presented before the judges and heard to their conclusion replete with presentation of all available evidence, I have to respect, indeed commend Ms. Bensouda’s concession that she does not have the evidence to sustain the case. She does not have the evidence that will “meet the evidentiary threshold required at trial” not necessarily because the evidence does not exist, but because she is persecuting the very persons who control, thus can manipulate the levers that open or close access to said evidence!

The following comments made by the Victims’ Legal Representative Mr. Fergal Gaynor best capture the dilemma that faced Ms. Bensouda. The comments should also give pause to those interested in a Kenya, indeed an Africa where the rich and powerful are not above the law and are held to account by a fair and unfettered judicial process that cannot be blatantly manipulated.  Said Mr. Gaynor:

The fact remains that there was massive obstruction to availability of evidence from phone companies and the government. Nobody wants a conviction based on false evidence.

The Irish barrister went on to say that:

There have been unprecedented levels of witness intimidation and interference. The accused has devoted enormous resources to end the case. The national Commissioner of Police himself was charged but there was no interest in taking evidence which might implicate him. Little wonder that the Kenyatta case has suffered such devastating setbacks

Echoing the very sentiments was a piece in the Global Post that wrote:

The five-year-long procedures in the Kenya cases have displayed all the court’s weak points and flaws, including its dependency on state cooperation for evidence collection, difficulties in protecting its witnesses and vulnerability to political pressures.

Finally, the man who set the ball rolling, the erstwhile Chief Prosecutor of the International Criminal Court Argentinian Luis Moreno Ocampo offered a variant of what the piece in the Global Post and Mr. Gaynor both said:

….the Waki Commission…. gave a lot of evidence on Mr. Ruto and less on the atrocities allegedly perpetrated by Mr. Kenyatta…..(possibly) because Mr. Kenyatta was then in government which made it difficult for the Commission to gather sufficient evidence against him.

The foregoing assessments are sad indictments on an international community that has at one time or another invariably said “Never Again” in the wake of wide-spread atrocities and extensive human suffering. The post-election violence of 2007 caused the death of 1,300 innocent Kenyans and to-date, most (Kenyans) cannot identify or name any high-ranking official or anyone for that matter who has been brought to justice for said mayhem: I certainly cannot cite a pronouncement by Kenya’s courts pointing to actions against people charged with fomenting the violence of 2007/08.

That Mr. Kenyatta may beat back the charges he is facing at The Hague would be a disappointment, not only to me, but to those in Kiambaa, Kibera, Kisumu, Nakuru, Naivasha etc. who not only lost loved ones, but life-long accumulation of relations and property at the hands of events and individuals allegedly organized and funded by the two principals.

On the other hand and in a uniquely Kenyan and now international community meme, most will “accept and move on” from the tragedy of PEV-2007 to the next one – in South Sudan, Syria, Central African Republic etc.

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Harnessing Our Collective Wherewithall

This piece is a follow-up to a conversation I had with a University of Nevada Police Officer during the International Rugby Board Seven Series (IRB Sevens Round 4) that I wrote for I struck a lengthy conversation with the officer who was manning the entrance to Portal 5; the section of Sam Boyd Stadium where most Kenyan fans sat during the just concluded event. It was a discussion that got me wondering whether like some other groups in the diaspora, Kenyans have been able to harness their power, especially economic power, to impact change home and abroad. During the conversation, Officer James (not his real name), absolutely impressed by the camaraderie and bonhomie displayed by Kenyans towards one another asked me whether we (Kenyans) were as friendly with and caring of one another back “in the motherland” as we were up in the stands.

I reflected on Mr. James’s observations then juxtaposed them with a thought I had been mulling over for quite some time: The widely-held belief that the Jewish Diaspora, especially here in the United States has done well not only supporting Israel financially, but more importantly, impacting America’s foreign policy in favor of the country, especially in the Middle East and at the United Nations (UN). The so-called “Jewish Lobby” has been, in equal parts, vilified and admired by friends and foe alike for its ability to influence American leadership since Israel got its independence in 1948, certainly after the Six-Day War of 1967. To be sure, that the Jews suffered the Holocaust and are under the constant threat of being attacked is a clear and present danger that the international community should be forever mindful of.

In their book “The Israel Lobby and US Foreign Policy”, authors John Mearsheimer and Steve Walt describe the Jewish or Israel Lobby as a “loose coalition of individuals and organizations who actively work to steer U.S. foreign policy in a pro-Israel direction” that is oftentimes “unintentionally harmful to Israel as well.” Disparate groups from the Anti-Defamation League (ADL), American-Israeli Public Affairs Congress (AIPAC), Jewish Defense League (JDL), and American-Jewish Congress (AJC) are among several whose stated objectives include fighting anti-Semitism, bigotry and defending democratic ideals and civil rights for all. Taken collectively, these objectives have resulted in policies that support and favor the small nation of 8 million Jews AND Arabs.

Full Disclosure:

I do not have evidence to support my contention that the Kenyan diaspora has not harnessed its (economic) power to impact change abroad and at home as effectively as say Israel. What I can say is that had the president of Israel and his deputy been facing crimes against humanity charges before the International Criminal Court at The Hague, the US would not have been silent. Actually the case would NOT even have been brought before the court because the US would have vetoed efforts to do so. I am thus using that Mr. Kenyatta and Mr. Ruto are facing charges of crimes against humanity at The Hague as indication of the country’s inability to impact policy at the international level, the recent proclamations by the country’s Foreign Minister Ms. Amina Mohammed notwithstanding.

The financial power of Kenya’s diaspora is real and no longer in doubt. Even more relevant to Kenyans in the United States and Canada, of the more than $1billion remitted back home in 2013, just under $500Million come from these two countries! Equally important is the fact that the KShs. 112billion remitted back to Kenya, also in 2013 is bested only by foreign exchange earned from tourism, tea and horticulture.

A recent piece in the Daily Nation about a new organization – Kenya Diaspora Development Forum – whose stated vision is “Harnessing Diasporas and Partners resources towards improvement of Kenyan Communities towards vision 2030” – was mostly met with derision, at least based on the comments in response to the article. Another Daily Nation article on the subject further speaks/spoke to the animus and mistrust amongst those in the diaspora. Efforts at organizing those in the diaspora have also been met with swift rejoinders with those excluded from said efforts accusing those organizing/attending said meetings of being “…imposters and fellows out to hijack the diaspora issue to use it for their own selfish ends.” Finally, the Kenyan government is still developing their diaspora policy and as of going to the press, all I could find was the draft version of the Diaspora Policy of Kenya report published 3 years ago in 2011.

Given the diaspora’s unquestionable (economic) clout, I have the following questions:

  1. Have Kenyans in the diaspora used their economic clout to impact policies towards the “motherland” not only abroad, but at home as well?
  2. Have they been successful at educating and influencing decision-makers and opinion leaders wherever they are about the value of strengthening relationships with Kenya?
  3. Have Kenyans been successful at convincing the outside world that it is in their best interest to help ensure that Kenya, given its rather unfriendly neighborhood: Lord’s Resistance Army (LRA) to the west in Uganda, Al-Shabaab to the east in Somalia, probably in Kenya as well and fellow-failed states Somalia South Sudan, respectively on its north-east and north-west border, are stable and safe?
  4. Are Kenyans abroad as united – abroad and at home – as portrayed during the IRB Sevens and other international events such as marathons and other running events?
  5. How does the fact that Kenyans back home cannot talk with a unified voice even on basic issues affect their unity in the diaspora?
  6. As an upshot to No. 2, does the fact that some in the diaspora retain some of their tribal biases and culture affect their unity and effectiveness?
  7. Does the fact that there are several organizations with the same basic vision and mission representing the interests of Kenyans in the diaspora dilute their effectiveness?
  8. How does Kenya’s reputation as a corrupt and poorly-governed country affect the ability of its citizens abroad to influence policy both in the diaspora and at home?
  9. Does the vastness and uniqueness of the diaspora, encompassing all continents, affect the effectiveness of organizations seeking to represent the interests of Kenyan diaspora?

This is partial list of questions and the article is not to prescribe answers or solutions to the questions. It is to ask them and spur discussions on how we in the diaspora can become effective in affecting policy here in the diaspora and abroad; definitely improve our effectiveness in doing so. As succinctly put by one Murori Kiunga, “Kenyan diaspora can do more than just remit money!”

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