James Gondi

In an article on Sunday the 29th of September 2013 in the Daily Nation entitled “Attack will draw West, Kenya closer” former US Assistant Secretary of State Jendayi Frazer spoke at length about why the cases at the ICC should be dropped in order to aid the fight against terror in the country.

Her basic premise was that it is not feasible to have the Head of State and his Deputy engaged in the ICC process so deeply while maintain an effective war on terror – she uses the week off from trial that H.E. William Ruto requested as proof of this.

She further argues that the ICC cases constitute a “distraction” from addressing security concerns and that as a result the United States should help Kenya extricate itself from the process for the betterment of the war on terror.

Kenyan foreign policy has been ad hoc and arbitrary at best, now defined by the ICC process and the use of the African Union and general Pan – African sentiment to rally support against the ICC in order to garner sympathy as a form of ad hominine defence. The politicization of the debate has transformed a legal issue into a political one.

The fundamental assumption or premise of this argument is flawed. Jendayi Frazer works under the assumption that the mere presence of the President and Deputy will embolden the operations of the Security sector.

This is a gross oversimplification of the challenges facing the war on terror and more importantly completely ignores the role of bad governance in creating the conditions that allowed the Westgate tragedy to take place.

Our borders are well known to be porous easily facilitating the flow of small arms and individuals with possible links to Al-Shabab to enter our country.

It is telling that some of the most insecure areas in our country are those nearest our borders which also happen to be those with a high concentration of weapons.

The proliferation of these small arms is aided by corrupt border officials and has links to local wealthy businessmen and politicians.

The illegal trade of commodities through the same conduits also benefits the same people. Therefore we cannot simply stop the flow of these arms through increased security measures but by a major shift in governance and the eradication of corruption that feeds these porous borders.

It must become increasingly difficult to find a corrupt official who will look the other way when you bring in small arms, and these dealers must not have links with the local elites.

Our security sector is in dire need of reform, a fact demonstrated by the lack of professionalism shown by the security forces during the Westgate tragedy and the list of glaring questions that have arisen over their conduct during the siege.

We have been promised an inquiry into the goings on at the shopping mall, but this is rhetoric we have heard before often used as a delaying tactic to protect perpetrators from justice.

This includes crimes carried out by the security sector including various human rights abuses and extra judicial killings including the Wagalla massacre the PEV of 2008.

As a testament to the impunity and protection elites have created for themselves the NIS focuses on civil society actors who bring up these issues rather than shedding light on what really happened during these events, in which they were complicit.

Income inequality and the presence of a large number of uneducated, unemployed youth promotes easy radicalization as illustrated by the PEV, the strength of the MRC and the general insecurity in the country not to mention providing a recruiting platform for Al-Shabab.

The country has become criminalized with political, business and criminal elites working in tandem for their own ends. Hence our institutions are being eaten from within, we are naturally insecure and the ICC process has not caused this.

On the contrary the ICC process represents a threat to this status quo, an external force that can impose accountability for the worst most heinous crimes committed on our soil since independence.

We cannot have justice and reconciliation locally from our current system of governance. Half of the country is of the opinion that the courts were compromised and that the last General elections were stolen, and the recent illegal suspension of Chief Registrar with Gladyce Shoellei have not helped matters.

The security sector is implicated in the very crimes which it is supposed to investigate and has consistently failed to do around political violence – for example the clashes around the 1992 and 1997 polls. Parliament has rejected the establishment of a local tribunal three times during the last government the two most powerful men in the country stand accused of complicity in the PEV violence.

Add this to the nature of governance in our country and its track record with impunity, the plight of IDP’s in Kenya and it is difficult to see how she envisages this government dealing with the perpetrators of the PEV.

Certainly low level perpetrators can be tried and some form of justice achieved but this misses the wider context in which the Westgate tragedy was allowed to occur.

The impact of the events of last month are tragic but they must be seen in the same light as the Wagalla massacre and PEV that has accompanied the advent of the multi-party system. These events are all symptomatic of poor governance. Abdicating ourselves from the ICC process simply continues the cycle of impunity and means that the nation will have missed a great opportunity to strike a blow against this culture.

Fixing corruption, impunity and creating good governance ostensibly fixes the conditions that allowed Al- Shabab to launch the Westgate attack and the similar conditions necessary for political violence to take place.

The recommendations of the TJRC that seeks to address historical injustices needs implementation for justice to be achieved. There is no reason to believe that the nation can suddenly begin implementing the recommendations of various commissions such as the aforementioned TJRC report the Ndungu report and others.

Jendayi Frazer calls for enhanced US support for the security sector, but without good governance and the track record of misappropriated funds in the past it is unlikely this will change things.

American support to help Kenya rid itself of the ‘distraction’ of the ICC cases will not result in greater security, indeed it will be a victory for impunity as it is unlikely that the local system can prosecute these crimes. Governance remains the central problem and this is inexorably linked to impunity.

If we fix governance we will no longer have porous borders or corrupt officials manning these borders and an Intelligence service far better equipped to counter threats from Al-Shabab. We must harness the togetherness shown in the wake of the attack exemplified by the Twitter tag WEAREONE to fight impunity and call for better governance, to hold our government accountable for what it does and only then will we effectively address the malaise that allowed armed gunmen to storm the shopping mall.

The reconciliation efforts which Jendayi Frazer suggests can only be effective once justice for politically instigated violence and sweeping reforms to address the structural causes of bad governance have yielded fruit.

By James Gondi

The writer is a Programme Advisor at the Africa Centre for Open Governance
– See more at: http://www.the-star.co.ke/news/article-139972/why-westgate-about-governance-cot-security-or-icc#sthash.ojt3DZcn.dpuf