MY RECENT COMMUNICATION to the UN Security Council, requesting the cessation of weak-and-weakening cases against Kenyan officials by the International Criminal Court, has caused considerable public commentary. What has been missing in the commentary is an understanding of the issue from the perspective of the Kenyan state, both as an embodiment of the will of its people and as a co-equal participant in international relations. I was not making a defence of the ICC inductees, but instead was representing the interests of the state I serve.
In the free and fair democratic elections of March of this year, the principals--the President and the Deputy President--were entrusted with executing the will of 40m Kenyans. In pursuit of the Kenyan people's domestic and international interests, state officials (under the direction of the principals) deal with multiple institutions whose work affects the ICC and in which the Kenyan state is an active member. When matters of the ICC arise, are those officials to pull back from vigorously pursuing their responsibilities because there is a perception that they represent only the principals' personal interest? Certainly not.
The Kenyan state is not on trial at the ICC despite the prosecutor's continuous use of a media bullhorn to try and erase the important distinction between the inductees and Kenya's state institutions. The state has an obligation to ensure that it operates from the strongest possible position, defending itself from foreign intimidation and manipulation, from attacks on its credibility and prestige as well as any attempts to curtail its full participation in the community of nations.
These are matters of national priority and security that Kenya cannot afford to neglect even as it busies itself in furthering its democratic gains and implementing a new constitution. If, as is the case this month, the UN Security Council has a debate on the functioning of international tribunals and courts, Kenya must participate on the same footing as other states and advance the nation's interest without self-censure. My critique of the ICC prosecution of Kenyan state officials is legitimate, and cannot be dismissed as carrying water for the President and Deputy President. And the fact is that my observations of the prosecutions are not frivolous. There is overwhelming and mounting evidence that the cases are frail. The prosecution has had repeated censure from the ICC judges. It has...