Detours to avoid justice may lead to a far rockier road ahead

EARLIER this week I had a conversation with a Kenyan about the fate of her country’s new president, Uhuru Kenyatta. It was a conversation that was intriguing and disturbing at the same time, because it posed the great conundrum about whether political stability should trump the need for justice to be served.

Like many Kenyans I have spoken to in recent times, she was adamant that Kenyatta and his deputy, William Ruto, should not be tried by the International Criminal Court for their respective roles in the 2008 post-election violence in Kenya.

Those weeks of madness claimed more than 1 200 lives and displaced more than half a million people as a stable and peaceful democracy was turned into a war zone. In Kenya’s heavily ethnicised political setup, the killings and destruction inevitably took on tribal dimensions.

Following the violence, international mediation resulted in a government of national unity in which the man who stole the elections — Mwai Kibaki — became the president and the real victor — Raila Odinga — had to settle for the weaker position of prime minister.

An inquiry headed by former UN secretary-general Kofi Annan later recommended that Kenyatta, who had backed Kibaki, and Ruto, who had backed Odinga, be tried for their respective roles in fanning the flames of the violence. They were duly indicted by the International Criminal Court and were due to stand trial this week, but the matter has now been postponed to November to allow the defence adequate time to prepare.

Predictably, this was condemned by the African political establishment, who accused the court of being used by Western powers to prevent Kenyatta from succeeding Kibaki in the 2013 elections. In their view, the charges were meant to pave the way for the more Western-friendly Odinga to take over from Kibaki, when his twoterm limit came up.

The African political leaders’ view was to be expected, because it is their wont to fall into blind solidarity at the slightest suspicion of Western interference. It was the attitude of ordinary Kenyans that was more interesting. The range of them opposing the indictment spanned the entire political landscape and even some of Kenyatta’s fiercest opponents wanted him to be let off.

There was even a compromise proposal that he be tried on home soil rather than in the Hague, where the international court is based.

In the run-up to the elections in May, the charges he faced boosted his standing. Kenyans argued that a vote for him was a vote against outside interference in their democratic processes. A vote for Kenyatta was a reaffirmation of Kenyan independence.

This week, I stood with this Kenyan citizen just a few kilometres away from the court and argued about this insistence on a compromise with justice. She was no fan of Kenyatta, but was clear about letting sleeping dogs lie. To her, the healing of Kenya’s scars and the rebuilding of a stable society were more important than trying potential warlords and punishing them for causing the unnecessary loss of life.

One can have sympathy for that point of view, given where we South Africans have come from. Although I tried to do so, I could not arrogantly lecture her about how such compromises can create a culture of impunity. We know the steps we had to take to cross the difficult bridge from the murderous apartheid system to democracy.

PW Botha died without ever having to fear accounting for his sins in a criminal process. Some of the ministers and generals who helped him run that evil state are still living large in this democracy. Their black collaborators, including a certain cantankerous chief, walk around with their blood-red hands.

In more recent times, we undermined our institutions and bent the law to facilitate a “political solution” for a senior politician against whom there were more than 700 charges of corruption, fraud and racketeering.

Indications are that many of the evil men who ran the apartheid security state continued their dark work in criminal syndicates well into the democratic era. Some remained in the security establishment and transferred their culture to democratic South Africa’s new forces. One therefore has to ask whether compromising on justice was worth it.

On the more recent “political solution” front, the politician with the 700 charges went on to higher office. In his elevated and powerful position, he acted with great impunity and became even more corrupt. He acquired new friends and treated the public purse as his own. He has further infected his political party and the rest of society with his ways. So bad has the damage been that South Africa will take ages to recover from the mistake it made by avoiding the more difficult path.

This is something Kenyans and other societies should think about before taking short cuts.