KENYA AND THE ICC: BECOMING WOUNDED HEALERS.

As I leave The Hague and the 15th Assembly of State Parties to the ICC today, I sense that this is the last ASP that I shall have attended. This is because, despite the struggle for justice for victims of post-election being far from over, the possibility of obtaining justice through the International Criminal Court for what happened in 2008 is foreclosed for now. And it is time to focus our energies elsewhere.

But I should clarify that we are not abandoning the international stage. Far from it, for I am so encouraged by the fact that over the last decade of using institutions we helped create and telling the victims' story to the world, we have mentored a new cadre of young, committed and passionate warriors for justice who are more than ready to take up the mantle and who will do even better than us in the quest for a more just society.

To the victims, those who bore the brunt of our brokenness as a country, those who still nurse the scars that you sustained when our difficult journey to true nationhood was temporarily but viciously interrupted when we descended into 60 days of anarchy. To you who, despite our best efforts, await your justice still, my prayer is that you would somehow find the strength to reach down deep into the recesses of your souls, and that there you would discover a healing balm that you can use not only to begin you own healing, but to share it with others, even with those of us whose woundedness is not as visible or obvious, and in so doing, to show us all the way.

We need to go back to a world where we did and said things not just because they were correct, but because they were right.

HISTORY DOES NOT FORGET: Njonjo Mue's closing remarks at the 15th Assembly of State Parties.

This session has attempted to address the question of justice in Kenya after the ICC. I would like to remind us that our struggle for justice did not start with the ICC. We were fighting for the dignity of the Kenyan people long before the ICC came to Kenya and we will continue fighting long after it has left.

Nor is this struggle a personal fight against Uhuru Kenyatta and William Ruto. It is against anyone who takes it upon himself to use violence to gain or retain power. We fought against Moi, we fought against Kibaki, we fought against Uhuru and Ruto and we will fight against anyone who comes after them and uses political violence as a means for attaining power.

As for the Kenya cases at the ICC, they may have gone away for now in large part due to witness intimidation and lack of state cooperation, but make no mistake, the victory of might over right is always and ever only fleeting. Augusto Pinochet and Alberto Fujimori, Charles Taylor and Hissene Habre are dead and living examples that you can delay your fate, but you cannot escape it. Justice will eventually catch up with you, because history does not forget.

I thank you.

Strive to see beyond the shadows and lies of your culture...

Every culture has its own shadows and lies. We must strive to see beyond them in order to free ourselves, and the masses, from these cultural blind spots even if for the moment we walk alone.

15^th ASSEMBLY OF STATE PARTIES TO THE ROME STATUTE

            OPEN BUREAU MEETING        

RELATIONSHIP BETWEEN THE ICC AND AFRICA

18 November 2016, The Hague

REMARKS BY NJONJO MUE

Mr. President, distinguished delegates, ladies and gentlemen:

When I received news of South Africa’s intention to withdraw from the Rome Statute, like all other people who have dedicated their lives to the fight for human dignity and accountability around the world, I was deeply saddened.

I also remembered an incident that occurred during the negotiations that led to majority rule in South Africa, held at Kempton Park, Johannesburg. The then State President F.W. De Klerk had made some remarks that greatly offended Nelson Mandela. In fact, I have never seen Mandela so angry in public. But what was Mandela’s response to De Klerk? He did not storm out of the hall; he stood and walked majestically to the podium and confronted De Klerk firmly and honestly. That is the African way: We do not withdraw and walk away; we stay and we respond.

Mr. President, there have been long-running allegations that the International Criminal Court targets Africa. These allegations have often been met by recounting statistical evidence to the contrary, by recalling that most of the African cases at the ICC were referred to the Court by African states themselves. But I would like to respond here by giving another statistic. As of August 2016, there were 16 UN Peacekeeping Missions around the world. 9 of these are in Africa. This comprises 56% of all missions. We know that Africa does not make up 56% of the global population, but I have never heard anyone claiming that the UN is targeting Africa. Could it be that the like the UN, the ICC is most active where it is most needed?

We all know from recent history that the need for post-conflict justice is self-evident. Where there is no accountability, where warlords fighting for power know that they will not be held to account, there is no motivation to end conflict. And if there is a pause in the fighting, without justice, the ensuing peace is ever only temporary. This was amply demonstrated in Sierra Leone where the Lomé Peace Agreement of July 1999 included a blanket amnesty for combatants. It was just a matter of time before fighting resumed. When accountability was introduced into the equation through the establishment of the Special Court for Sierra Leone, sustainable peace was assured and continues to hold to this day.

Part of the grievance by African states against the ICC flows from a deeper pathology of governance in Africa where what is regarded as bad for the leader of a particular country is automatically assumed to be bad for the entire state. It also flows from a narrow and outdated definition of sovereignty that dictates that states should be left to mind their own business no matter how the decide to do so. But sovereignty is not a blank cheque nor can sovereignty mean that African states – whether governments or warlords – should be free to brutalise, murder, rape and loot from their own people in pursuit of power and resources without consequence.

The AU political leadership regularly complains about the role of the ICC in Africa. But these conversations are held behind closed doors in Addis Ababa and in other African capitals. Spaces where civil society and the press, let alone ordinary citizens, have to struggle to gain access. The tone of the communiqués that are issued after the AU summits make it clear that the leaders are speaking from their own perspectives. But who speaks for the victims?

The ICC is our court, created through the demand and with overwhelming support of African states, governments and civil society alike, to try to overcome their own legacies of massive human rights violations, including apartheid, genocide and multiple civil conflicts. It is time to tell those who complain that the Court is targeting Africa that the true position is that it is rather African victims who are accessing their Court in pursuit of justice. This is especially true when we remember that the ICC is a court of last resort which only intervenes where states are either unwilling or unable to investigate and prosecute serious crimes according to the principle of complementarity. There is a simple answer to African states that feel ‘targeted’ by the ICC to address the situation: Prosecute atrocity crimes occurring in your territories or committed by your nationals and deliver justice to the victims at home.

But this said, ICC is not a perfect institution. We should also remember that the Court is a small island of law that exists in a vast sea of politics. And as with all islands, sometimes the tide rises and the storms blow and the waves of politics come crashing onto the shores of the law and this clearly presents some challenges. There are three notable examples this:

First is the role of UN Security Council in referring cases to the ICC and deferring ongoing cases. 3 of the 5 permanent members of the Security Council are not members of the Rome Statute and yet they have the power under the Rome Statute to refer other states, including non-members, to the ICC as they have done with Sudan and Libya. This is clearly problematic. The situation is exacerbated by the fact some members of the Security Council have used their veto power to prevent serious crimes taking place in countries such as Syria from being investigated by the ICC. This blatant display of double standards that sacrifices the demand for justice at the altar of geo-strategic interests of the great powers can only hurt the global fight against impunity.

Second, there have been differing interpretations of the role of Head of State immunity in the Rome Statute system. While Article 27 of the Rome Statute is clear that official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility, some have argued that this contradicts Article 98 which seems to recognize head of state immunity under international law.

Third, there is the alleged targeting of Africa and the perception of bias against African countries that I have already discussed above and will return to in a moment.

How can these challenges be addressed in a meaningful way that leads to the strengthening rather than the weakening of the Rome Statute system and the International Criminal Court?

While the complaint against the role of the UN Security Council is legitimate, it is usually misplaced.  Failure to refer situations such as Syria while referring those in Sudan and Libya are not the fault of the ICC. They are a result of imbalance in global power relations and the maintenance in place of an outdated global peace and security architecture inherited from the post WW2 arrangement. There is need to revive and continue the debate on UN Security Council reform in order to make UN decision-making more reflective of the realities of the 21^st Century. African countries need to direct their firepower at the real source of the problem; at the UN, not the ICC. We don’t treat a brain tumor by amputating a leg! The 3 members of the P5 must also continue to be encouraged to join Rome Statute in order to make the ICC a truly global mechanism for pursuing justice for victims of serious crimes.

On Head of State immunity, it is a cardinal principle of international criminal justice since Nuremberg that there cannot be immunity for persons who commit atrocity crimes. To grant them immunity would defeat the whole purpose of the system that has been painstakingly put together to ensure that there is accountability for crimes that shock the conscience of humanity. However, a conclusive interpretation of the Rome Statute on the issue of immunity needs to be sought by way of an advisory opinion from the International Court of Justice. This will clarify the law and place the pursuit of accountability on a firm footing. I am grateful to my friend Allan Ngari of the Institute of Security Studies for drawing my attention to this point.

On the perceived focus on Africa by the ICC, the Court needs to expand its scope beyond Africa and address violations wherever they occur in countries within its jurisdiction. While recognizing that each situation is unique, the Court also needs to demonstrate that it treats all countries equally. In this regard, it has been difficult to explain why a country such as Colombia has been under preliminary examination for 12 years, while the Court moves much faster in opening investigations in other situations. I am not suggesting that the court open investigations elsewhere for the mere purpose of filling a quota or demonstrating impartiality. I am saying that when one looks at the conflict map around the world, one clearly sees that it extends to parts beyond Africa and the Court’s reach needs to mirror that map.

In conclusion, Mr. President, I wish to end where I began, with the image of Nelson Mandela walking majestically to the podium at Kempton Park when he could have stormed out of the room. The ICC is not just struggling under the weight of a legacy of impunity on our continent; it is also struggling under the weight of history. There are strong sentiments among African peoples driven by legacies of racism, domination, and exclusion. These sentiments are real and they cannot, and should not be wished away. Like Mandela, all Africans in this room have at one point or another in our lives been insulted, discriminated against or victimized because of the colour of our skin. But when this has happened, when we have felt unfairly treated, we have not walked away from the problem, we have confronted it. We have been part of the solution to the myriad challenges confronting us as members of the human family and in so doing, we have often shown others the way. All African ICC member states must do the same. They must work within the Rome Statute structures to improve an International Criminal Court that is needed more desperately now than when it was first created.

I thank you.

Forgive them Lord, we pray...

Dear God, 
we declare here by faith 
what we have sometimes
found so hard to do in fact 
that we unconditionally forgive 
those of your children
who over centuries past
have treated us
as less than human and,
through a long and painful history
of slavery and colonialism,
segregation and apartheid,
imperialism and exploitation,
have hated us and abused us,
scorned us and excluded us,
oppressed us and killed us,
for no other reason
than that our skin
was of a darker hew
than their own.
But now we understand
that what they did to us
was driven
not so much by hate
as by fear
and so,
instead of hating them,
we choose to embrace them
and offer to be used by you
to help them
to deal with this fear
and find instead
a new love for themselves
and for others,
even those not like them
and, in doing so,
to discover once again
what it is
to be truly and
fully human,
Amen.

Forgive us, we pray, Lord...

Dear God 
Please forgive us 
for exploiting the poor, 
abandoning the widow 
and ignoring the refugee.
Forgive us also
for not feeding you
when you were hungry,
not giving you medicine
when you were sick,
not welcoming you
when you had nowhere to stay,
and not visiting you
when you were in prison.
Help us from here on
to put the welfare of others
above our own
And to do unto the least
of these your brethren
as we would do unto you,
Amen.

Fulfilling the Kenyan dream...

Kenya is essentially a dream, a dream as yet unfulfilled. It is a dream of a land where women and men of all tribes, and all races and all nationalities and all religions and all ages can live together as sisters and brothers. Are we the generation that will realise this dream, or shall we be content to continue acting out our existential nightmare?

By abusing God's daughters, we have also diminished ourselves....

Dear God
Please forgive us
for the way we have treated your daughters -
our girlfriends and wives, sisters and mothers - 
as children of a lesser god.
For abusing them physically, verbally and emotionally
for denying them opportunities
that should have been their right at birth.
For keeping them ignorant and subservient.
For making them work twice as hard
for half the pay and even less recognition.
Please help us to realise
that when we abuse your precious daughters
we are not only abusing your image in them
but that we ourselves are thereby also diminished,
and that 'by compressing the feet of our daughters,
we are also retarding the steps of our sons'
for none of us can be truly free
until all of us are free
to pursue our dreams
and to achieve
our fullest potential.
We thank you for your mercy,
Amen

Justice ultimately triumphs over injustice - Njonjo Mue's acceptance remarks for the KCPF Utumishi Bora Award for Crusading for Justice.

When you devote your life to crusading for justice and fighting for human rights, you learn to come to terms with two realities. First, there are very few rewards this side of eternity. Second, the road to a just society is long and winding and treacherous. And along that road, one often encounters low moments - whether one is sitting in a cold police cell, or being teargassed or beaten by the police for participating in a peaceful demonstration, or one is denied opportunities for career advancement because of being too vocal and refusing to support the status quo. In these moments of self-doubt, it is easy for one to lose sight of the ultimate destination. At such times, one needs a sign post to reassure them that they are still moving in the right direction. To me, this award is one such sign post.

And so, I wish to thank the Kenya Christian Professionals Forum for this recognition, this sign post. I wish to thank my life partner and best friend, Katindi Sivi Njonjo for her support. Thank you, sweetheart, for being my constant encourager. I wish to thank my friends and colleagues in the civil society. Some of you here may not always agree with what civil society does or how it does it, but as one wise judge pointed out a long time ago, power corrupts and absolute power corrupts absolutely. So civil society plays a critical role in keeping power in check and the powerful accountable. Finally, I thank my Lord and Saviour Jesus Christ, who died an unjust death, but rose again and became our abiding inspiration by demonstrating that ultimately justice triumphs over injustice, right overcomes wrong, and life conquers death.

I thank you. 

Choose to build up, not to tear down...

We must choose 
To build up where others choose to tear down
And to pray to the God of love 
To pour into our hearts
An abiding love 
For every child woman and man
Who calls this country home
For only then shall our hands
Find true strength together
To lift up this our land and nation
So that the dark days of despair
Can finally begin to give way
To our season of hope.

Listening to the silence... waging peace.

Kenyans need to be still for a moment and learn once again to listen to the silence, to reconnect with our collective soul, and in so doing to adequately prepare for the real battles that lie ahead. Only then can we have the presence of mind, when the moment of truth comes, to wage peace instead of war and in so doing to save our country and our conscience from ultimate destruction.

Shining our light in the darkness....

It is dark in Kenya today.... very dark. The storm clouds are gathering, the war drums getting louder. Almost too loud for us to remember that this nation was founded by heroes and sheroes who, though outnumbered and outgunned, still stood up for their humanity and their dignity. Though the freedom they fought for was shortly thereafter stolen from them, still they left us with a legacy of choosing to die on our feet than to live on our knees.

Now the call of history summons us once more to stand up and be counted. But we shall not be provoked into shedding innocent blood. We shall not be incited to return hate for hate. We shall instead rise up to nonviolently but firmly and actively defend those first principles for which our war of independence was fought and on which our nation was founded, the principles captured by the sacred words of our national anthem. That for our children if not for us, Kenya shall yet be preserved as a land where they shall dwell in unity, peace and liberty, and where plenty will be found not just within our physical borders, but within the heart of every man, woman and child.

Marching around the walls of Jericho...

In this season when the word is on every tongue, I have made a covenant with God not to speak about corruption. Not because it does not exist. On the contrary, like most Kenyans, I am overwhelmed and intimidated by the seemingly impenetrable walls which stand on the way to our land of promise, of which corruption is just a part. But I am marching silently around and around these walls and waiting for the trumpet to sound. Then and only then will I join other men and women of goodwill in lending my voice to the shout that will once and for all bring the walls tumbling down. But make no mistake, the walls will come down. It's not a question of whether but when. The challenge that lies before us now is to march around them in quiet dignity and when the time comes, to shout together, aloud and with firm resolve, and to confidently take our country back never to give it up again.

We shall overcome... Amkeni ndugu zetu!

JESUS AND JUSTICE: A 10 Point Reflection

By Njonjo Mue

Recently, I've been reflecting on the subject of Jesus and Justice. I am still walking along this exciting journey, but I have reached a few tentative conclusions which I'd like to share with you:

1. Our God is a God of justice. As the Old Testament reminds us, justice is the foundation of his throne.

2. Many people, and even whole societies, that claim to be Christian deny this foundational attribute of God in their actions, if not by their words. They preach and practice an incomplete gospel of individual salvation without any reference to the social implications of the true gospel of Jesus Christ. 

3. Whether you embrace the purely individual gospel or the holistic gospel referred to in 2. above depends in part on your Christology and your eschatology.

4. If your Christology emphasises only the deity of Jesus Christ and his triumphant resurrection, you are likely to miss out on what God has to say about the pursuit of justice in the here and now and instead merely focus on defending Christ's deity while ignoring or excusing injustice and encouraging yourself and victims of injustice to await the second coming of Christ when all wrongs shall be made right. 

5. Your eschatology is also likely to point only to a future end-time  when all things will be made right with the return of Christ instead of getting actively involved in the pursuit of a more just world in the here and now. 

6. But if in addition to acknowledging the deity, resurrection and return of Christ, we also recognise him as a very human servant of God who spoke prophetically to the unjust religious and political authorities of his time,

7 And if we can be inspired by his bodily suffering due to the injustice he encountered and endured, yet overcame,

8. And if our eschatology not only looks to the establishment of God's kingdom in some distant future, but as an ongoing and unfolding reality, 

9. Then we begin to see ourselves not just as lucky members of a privileged club of the 'saved' whose tickets to heaven have been booked and who can therefore sit back and relax while we await the trip aboard 'Rapture Airlines'; we instead come to understand our mandate to work for the creation of a new cosmic and social order in the here and now that is radically different from the one over which the powers and principalities of this world preside. 

10. As the author Jerry Folk writes in his book, 'Doing Theology, Doing Justice', "Those who live in and preside over this world are perhaps willing to accept the idea of God's reign coming sometime - but not here, and not now. Yet it is precisely this here-and-nowness that Jesus announces.... The life, death and resurrection of Jesus calls the new creation into existence here and now, in the midst of the old.... The old is already beginning to pass away. It is the presence of this end-time reality here and now that principalities and powers object to, not the abstract idea of an end time."

DR. WILLY MUTUNGA: A FRIEND, A MENTOR, A SOLDIER OF JUSTICE

I was privileged on 18th July 2016 to say a few words on behalf of ICJ-Kenya and the wider civil society community at a farewell party for Dr. Willy Mutunga as he retires as Kenya's Chief Justice. Here's a transcript of what I had to say:

Thank you Willy for mentoring many of us, for me, from when I was a foot soldier in the street battles in the early push for a people-driven constitution-making process in the mid-1990s. Although we were impatient, hot-blooded, young men and women then, we went out onto the streets knowing that you, our leaders, always had our backs, and we could be patient with your leadership as we knew that throughout, you had the interests of Kenyans at heart.

On behalf of ICJ-Kenya, whose board I am privileged to chair, I wish to thank you that during your leadership of the judiciary, you have made life much easier for us and for all other CSOs that work on judicial reforms. You have made justice more accessible to the poor and the marginalised by operationalising the Court Users Committees (CUCs), and you have demystified the office of the of the Chief Justice by maintaining an open-door policy. Thank you for the work you have done to humanise the judiciary.

I want to congratulate KHRC for convening such a diverse range of civil society actors here tonight. There are colleagues here whom I have not seen in years! This is a testament to the many colleagues who call Willy a mentor and a friend. But while we meet here tonight to celebrate one Willy, I remind us that just two weeks ago, this community came together again to mourn another Willy - Willy Kimani who alongside his client Josephat Mwenda and their taxi driver Joseph Muiruri - was brutally murdered in a case of extra-judicial killings allegedly by the police. Their tragic deaths are a stark reminder that although we now have one of the best constitutions in the world, the struggle to create a truly just, peaceful and democratic society is far from won. We re-commit ourselves to this struggle and to staying true to the cause until the battle for constitutionalism is won.

Freedom fighters tend to make terrible post-independence leaders This is because they come to office with a sense of entitlement and once they discover that they do not have what it takes to lead their followers in the new dispensation, they try to make up for it by unlawfully extending their stay in power. Our continent is not short of examples of this kind of leader.

But Willy Mutunga has proved to be the exception. Not only was he a freedom fighter offering great leadership to the constitution-making process in the 1990s, but he went on to become a great first Chief Justice in the new constitutional dispensation. And when he had made his contribution, although many would have been delighted to have him stay on until his retirement age in a year's time, he chose to leave in good time to give the JSC time to recruit his replacement well ahead of the next General Election. ICJ-K expects no less transparency in the process of recruiting the next CJ than the process that gave us Willy Mutunga.

And so tonight, as a great man leaves to go and do more great things, I am not here to say farewell because Willy Mutunga, you are really not going anywhere. But as a solder of justice, you are merely going on to march with a different detachment of the same army to which we all belong. For now I can only wish you God's blessings and guidance in that next season of your life of service to humanity.

I thank you

DP Ruto Chief Guest at Alliance Fundraiser? #NotInMyName!

For the better part of a year, I have tried to keep off what might be perceived as any attack on our political leadership, but what I am writing here is not about politics or a political leader but about my Alma Mater, the school that shaped me into who I am today. And so, try as I might, I cannot remain silent at such a time as this. 

Alliance High School was built on a strong foundation of Christian service to society. It is not by accident that the school's motto is 'Strong to Serve.' When I attended the school in the 1980s, the values of discipline, honesty, integrity and hard work were drilled into us as being inseparable from any authentic experience of being human. It is no wonder that all the blood, sweat and tears that had been invested in building the school since it was founded in 1926 resulted in consistent excellent performance in both curricular and extra-curricular activities.

This month, the school celebrates its 90th birthday. For some reason the school has decided to invite Deputy President William Ruto as the chief guest for the launch of its fundraising campaign. This notwithstanding the fact that this individual has very many question marks hanging over his head, from the unfinished ICC trial to questions about the sources of his money.

I was taught during my days at the school that the end could never justify the means. But it would appear that in the Alliance of 2016, the end very much justifies the means! The guiding principle of today's decision-makers at the school, be they the Board of Directors, the school administration or the Old Boys Club, would appear to be 'All we want is your money... no questions asked.'

Former School Chaplain, The late Rev. F.G. Welch and his wife Eileen are only two of the luminaries in the history of the school that have paid a high price for what they believed in. After decades of dedicated service to the School, they were unceremoniously deported from Kenya for standing on principle and refusing to dis-invite politician Kimani Wa Nyoike, who had fallen out with Moi, to a meeting of the school's Theological Society of which Rev. Welch was the patron. They must be turning in their graves at the thought of how far the old school has compromised its principles and moral standards.

I am only one of thousands of students who have passed through Alliance High School on their way to going on to take their place on the stage of human affairs, but to the extent that my voice counts, I strongly urge, even at this late hour, that my old school rescinds this invitation. And if it does not, I want to place it on record here that the invitation to DP William Ruto to be the Chief Guest on the 90th Founders Day is done #NotInMyName.