However you look at it, it’s a mess. The decision by the National Assembly to try and pull out from the Rome Statute and hence from the National Assembly’s (ICC) jurisdiction, is the latest stage signifying the state of disarray and confusion that has been reached in this process. Virtue is not held by one side or the other. Many people and factors are to blame for the sorry pass that we have come to.

THE ROAD FROM ROME

Yesterday the National Assembly voted to bring forward a bill within 30 days to repeal the International Crimes Act that currently brings Kenya under the auspices of the Rome Statute and thereby the ICC. If approved, the Kenyan government will notify the United Nations (UN) Secretary General that is in effect pulling out of the ICC.

That’s what the bill will say. However, the Rome Statute (Article 127) says that even with written notification to withdraw from the Rome Statute delivered to the Secretary General withdrawal will not come into effect until one year after notification. So in theory the trial of Uhuru Kenyatta, William Ruto and Joshua arap Sang at The Hague will go on.

TEMPERS FLARE IN DEBATE

Tempers flared during the debate and CORD MPs walked out – and then some walked back into the chamber. “We have walked out because we don’t want to be a party to this”, said Minority Leader Francis Nyenze.

Majority Leader Aden Duale fired back: “The owners of the ICC have walked out because they cannot watch a country redeeming itself and gaining fresh independence”.

“We may manage to withdraw from the Rome Statute but what if in 50 years coming a despot comes and wants to rule everything, what will Kenyans do?” asked Ruaraka MP Kajwang Francis Tom.

“This is neo colonialism”, declared Kamukunji MP Yusuf Hassan, the “ICC is about trying Africans”, he stated.

“We want to join Africans in getting African solutions to African problems”, argued Nairobi County Woman Representative Rachel Shebesh.

“You pass this at your own peril and face the consequences”, warned Kisumu West MP Olago Aluoch, “The timing of this motion is suspect”.

So they debated (if you can call it that) but the motion was passed, Jubilee has the numbers.

BENSOUDA’S WITNESSES

Majority leader Adan Duale – The owners of the ICC have walked out because they cannot watch a country redeeming itself and gaining fresh independence

Meanwhile, over at ICC courts in The Hague, ICC Prosecutor Fatou Bensouda added two witnesses to her list but she still has until Monday to disclose their identities. That’s a plus for Ms Bensouda who has seen three of her witnesses pull out of the trial this week claiming that the prosecution have manipulated their statements and abused them.

Ms Bensouda used the announcement to warn people against talking witnesses out of testifying. It’s a fair point but then so also is the concern that some witnesses were talked into giving evidence in the first place and coached in what to say.

Both sides accuse the other of cajoling, and even paying, witnesses to either give testimony or withdraw from doing so.

HOW DID WE GET IN THIS MUDDLE?

Where does this all leave us? In a right muddle says the Kenya Forum.

The problem with reporting and discussing the issue of the ICC trial is that comment or reportage that seems to support one side or the other leads some readers at least, to assume bias on our part. The only way this misconception can in part be dealt with is to tackle the subject head on as objectively as possible.

THE SORRY SAGA

The ICC trial arose out of the post election violence after the 2007 election in Kenya. The Kenyan police, judicial system and governmental process did not address the issue. So the search for justice was handed over to the ICC.

The decision as to who to investigate and prosecute, however, was in some measure based on political considerations of more than one type. The deal to form a coalition government, it has been claimed, was based on some individuals receiving assurances that they would be exempt from involvement in the ICC process. Further, the decision as to ultimately prosecute may have been influenced by political bias in Kenya and by the leanings of western governments and influences.

So the ICC process started under a cloud of suspicion that it was in part a political process. Added to this were concerns that it was white man’s justice over black Africans.

JUDGING THE JUDGES

During the pre-trial process the three judges presiding changed their stance, ruling that it was not that the accused had actually ordered or committed violence themselves, their original position, but that they were the heads of organizations under the auspices of which violence occurred. That change begged the question, again, of why given that ruling other political figures in Kenya had not been hauled in front of the ICC.

The ICC’s decision to proceed to prosecution was only done so on the basis of a split vote, with one judge out of the three producing a minority ruling that argued the court could not hear the case. Despite disunity among the judges no appeal as to their decision was allowed.

KENYA’S ELECTION

Then came Kenya’s election earlier this year. The question of the ICC trial played some part in the debate and it probably helped to stiffen the resolve of some to vote one way or another.

Western diplomats added to this resolve on the part of some Jubilee supporters by stating their views that whilst they were not interfering in Kenya’s democratic process, they did caution Kenyan voters that they would have to take into account the consequences arising from how they voted. That did not go down well.

Of more significance, of course, is the fact that Uhuru Kenyatta and William Ruto won the election. Now the ICC and western powers found themselves at odds (probably against their expectations because they thought Raila Odinga and the ODM were going to be victorious in the election) with the elected government of Kenya.

THE KENYA FORUM – IT SHOULDN’T HAVE COME TO THIS

The Kenya Forum thinks Kenya should remain signed up to the Rome Statute. We also believe that having agreed to adhere to the ICC process we should still do so and hence so too should the Kenyan defendants. But, the ICC will have to have a long hard look at the way they operate, cut the megaphone justice and the shenanigans with the witness list. Western powers, sorry, butt out.

The truth is that the Kenyan government, judiciary and police and now the national Assembly, together with the international community and ICC prosecutors and judges, should never have let it come to this in the first place.