The recent summons by the International Criminal Court to President Kenyatta reminds me of a story told to us in the late 1990s by the principal of Kisii High School.

Mr John Kinaro wanted to impress on us the virtues of putting up a fight in the face of defeat.

In the story, a leopard cornered a squirrel for prey.

There was little doubt how the squirrel would meet his end.

However, the poor thing asked for one favour; that he should be allowed to scratch the soil
and distort the leafy surface so that posterity will be told that it died fighting.

The ICC’s summons of the President is not too dissimilar to the squirrel mindset. In what is clearly a sign of the beginning of the end of this case, the court wants to score symbolic
points as the first in history to summon a sitting President.

Images are powerful.

As the second case involving the Deputy President and journalist Sang wobbles on, the present summons shows that the court is interested more with milking political capital from images and symbolism than delivering
justice to victims of the post-election violence.

But how did the ICC come to such low levels of flippancy?


First, the ICC, not surprisingly, approached the Kenyan situation with assumptions that Africa is one homogenous ‘country’.

It borrowed heavily from its own experience in
West and Central Africa, where political violence revolves around what anthropologist Mats Utas calls ‘Bigmanism’, a situation where powerful warlords monopolise the violence
and reward systems.

The court simply adopted this template to prosecute the Kenyan situation.

This top-down flow of violence was entirely different from Kenya’s case where widespread
popular agitation from below, mutated organically, and with time, began to spread ‘upwards’.

It is only in a warlord political culture that one can identify a suspect first and chase evidence afterwards.

The other problem the court had was in the person of former prosecutor Luis Moreno-Ocampo.

Perhaps in a vain attempt to relive the years when he prosecuted ‘The trial of the Juntas’
in Argentina, Ocampo promised to make an example of Kenya rather than prosecute a case on evidentiary merits.

He approached a delicate situation with the swagger of an Oscar- nominated Hollywood star.

The man had clearly caught the disease of the lights and flashes of cameras and would never miss a chance to hog the spotlight.

To cap it all, he adopted one of our precious lions just like other celebrities before him.

It was, therefore, hardly shocking that he had little evidence after several trips to Kenya.

Third, Ocampo was met by a constellation of NGOs and civil society groups that had been in the trenches long enough to smell blood hundreds of miles away.

In the case of the PEV, the logic and social structure supported the existence of most NGOs’ position, a victim, a genuine event of injustice, civil society actors and foreign
donors in a complex maze of mutual gain.

Thus, when the ICC came calling in search of witnesses, some civil society top dogs knew how well to put feet and faces behind cleverly contrived statements.

At the same time, Kenya was in the high noon of ‘victimcy’.

Anthropologists define victimcy as a form of self-representation by which a certain form of agency is exercised by a victim in post-conflict societies.

While we clearly had thousands of genuine victims of PEV, a handful of them had learned from close interactions with civil society that victimhood was something that could be swapped for material rewards.

The offer of relocation to Western capitals and regular stipends by the court to potential witnesses was one that found ready ground.

The outcome of this ‘victimcy’ culture is
clearly seen in the increasing number of witnesses declared hostile.

At the same time, the court is a victim of its own structure.

Like our civil societies that rely mostly on external funding to sustain and build careers, the ICC operates in a context that panders to the whims of its paymasters first.

That is why the current political symbolism and brinkmanship counts at the blundering ICC.

In spite of a trail of judicial blunders, it makes for a strong argument to its funders for the court’s continued existence.

Dr Omanga lectures in Media Studies at the Moi University School of Information Sciences. (ankodani@yahoo.com)

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