Richard Dowden’s last point in his blog posted on 27 September – that the Westgate massacres will spell the end of the International Criminal Court (ICC) – should not pass without challenge. Behind his prediction lies an argument often used before, eg during the Cold War, to justify support for or tolerance of poor governments and poor governance. Some infamous previous events in Kenya have accordingly not been resolved. Following the horror at Westgate, some seem to think a choice must be made between bolstering Kenya in its fight against terror and letting off its President and his deputy from their cases at the ICC.
The victims of Westgate and the bereaved (including the country’s President) deserve every sympathy, and so does Kenya in a bleak hour. Equally, early and rigorous inquiries are required into the events and matters arising.
Appalling as Westgate and earlier terrorist attacks were, a larger loss of life arose from the post-election violence in 2007-8. Comparison of numbers in no way diminishes or belittles the pain and loss of any single victim and loved ones in any of these crimes.
But we have to remember the facts. After the 2007 election, 1,100 died and over 600,000 were terrified into fleeing their homes. The impact was widespread among the Kenyan populace.
The ICC took on the most serious ensuing prosecutions because the Kenyan government could not take up the invitation to do so. The cases cannot simply now be undone by will of the Kenyan parliament or disapproval of the African Union.
The President is constitutionally bound to ensure Kenya honours its obligations to the ICC as to its other international commitments. He has said he will. Doing otherwise will mean breaking the letter and spirit of the new Kenyan Constitution.
For its part, the Court has shown itself sensitive to Kenya’s present plight in dealing with Vice-President Ruto’s request to be allowed home to help with the aftermath.
Making the tragic events at Westgate a justification for leaving totally unresolved the cases placed before the ICC will, however, dishonour the victims of both horrific episodes.
An effective counter-terrorism strategy needs broad public acceptance, trust and support. Kenya’s foreign friends should support the country’s leaders and parliamentarians in turning their outrage over Westgate into a determination to protect Kenya’s declared values. These include upholding international norms, protecting the rights of its citizens and resolving all abuses of them, against corrosion from internal or external sources.
Sir Edward Clay is former British High Commissioner to Kenya, Uganda and non-resident Ambassador to Rwanda and Burundi.