After application for adjournment, victims’ faith in the ICC is waning - featured in Nation Op/Blogs: http://www.nation.co.ke/oped/blogs/dot9/victims-faith-in-the-ICC-is-waning/-/1959700/2150186/-/view/asBlogPost/-/sjb5py/-/index.html

As the Office of the Prosecutor at the International Criminal Court engages in legal battles with the defence, it holds the hopes of the victims in its hands.

It is quite unfortunate therefore, that after the carefully orchestrated campaign by the African Union on behalf of Kenya’s and other African heads of state, the spotlight has shifted from justice for the victims of crimes against humanity to walking around on egg-shells due to the arguments posed about racial bias and sovereignty.

The fact that the Assembly of State Parties (ASP) responded to this campaign by changing the rules of attendance to trial at the ICC in favor of the suspects has left the victims in the Kenyan cases disillusioned by the ICC in general and the Office of the Prosecutor specifically.

READ: Victims’ lawyer warns Bensouda

READ:  Victims Response to the Prosecution’s Application for An Adjournment of The Provisional Trial Date ( ICC Website)

WATCH: What about the Victims?

In a Google+ hangout hosted by Journalists for Justice, Mr. Fergal Gaynor, Common Legal Representative for the victims in Kenya Case 2, elaborated the sentiments of the victims in this regard:

“The accused was able to send his representatives to argue in his favor in closed door meetings at the ASP which was unusual and a matter that has never occurred in any criminal court anywhere in the world. The victims’ representatives were not allowed to attend these sessions so as to bring responses to the submissions by the accused’s representatives at all. The victims were left with no alternative but to rely on the efforts of NGOs that champion the rights of victims and human rights to argue on their behalf and it certainly wasn’t easy. In future, we are going to have to look closely at the appropriateness of allowing the accused to send forth a huge state contingent to argue for rule changes in a situation where the victims are not allowed to present a response to whatever arguments are being presented.” 

The impact of such amendments that are favorable to accused persons at the ICC, persons who indeed are in positions of power or high office in government will certainly affect the course of justice for the victims of international crimes. It leaves the victims feeling helpless and dejected in a matter that has gravely affected them for years.

“Within the court, we have to trust the judges of the ICC who are well experienced and are fully aware of the depth of human suffering experienced in such cases. I am confident that they will take into account the suffering as well as the legal arguments presented by both the prosecution and the defense teams,” said Gaynor.

REFUSAL TO SIGN TREATY

It serves little to no comfort for future potential victims, though. Already, the reports streaming in from the crisis in South Sudan implicate both government and rebel forces in atrocities of an unprecedented nature given the short time span of the conflict. The question must be asked: what hope or faith can these victims have in getting justice given the abject refusal of their government to even sign the Rome Treaty?

How the rule changes allowed at the ASP will affect the prosecution and evidence collection in such cases by the ICC remains to be seen. Already, the several postponements and further application for adjournment in Kenya Case 2 has left the victims concerned with that particular case completely skeptical.

“The whole reason the court exists is to declare an era of an end to the impunity and to hold those accountable for massive crimes regardless of the office they held or hold,” says Fergal Gaynor. “I have made it clear in a petition to support the adjournment that should the cases collapse it would have a devastating effect on the deterrent nature of the court. We have seen credible reports of tremendous atrocities being committed in South Sudan and the Central African Republic. It’s more important than ever that the court should be a strong deterrent warning that those responsible for these crimes will be held accountable.”

OBSTRUCTION

As Chief Prosecutor Fatou Bensouda elaborated her reasons for requesting an adjournment of the trial in case 2 as a lack of evidence to meet the evidentiary threshold required, she also indicated that she needed more time to collect evidence for the case.

It is possible to view the adjournment of the trial as favorable to the victims, because more evidence may strengthen the case so that justice for the victims is served. However, the challenges faced by the prosecution in collecting adequate evidence or witnesses from Kenya thus far leave a lot to be desired.

“I am really concerned about the fact that the government of Kenya has obstructed access to the right witnesses and to documentary evidence and it hasn’t been held accountable to its own obligations by the prosecution. The question is – why not?” says Gaynor.

Even as the case against President Uhuru Kenyatta seems to have stalled, some supporters have taken the adjournment to indicate the innocence of the accused. But if the accused is not guilty or rather if there is not enough evidence thus far against him, then who is to be held most responsible for the atrocities committed in Naivasha and Nakuru during the post-election violence of 2008?

Mr. Fergal Gaynor has directly posed this question to the court in his submission:

“Some victims’ reactions were: “what have we done to make the Prosecutor mess with us like this?”; “They have forgotten the suffering that we faced during the Post-Election Violence. They do not care for us”; “we are crying for justice. Who will now hear us?” 

Indeed, who will listen to the pleas for justice by victims, in a situation where both the AU and ASP failed to recognize them? This haunting question remains unanswered for now

Twitter: @bettywaitherero

On the plight of Victims in South Sudan’s crisis

President Yoweri Museveni’s of Uganda military response to South Sudan’s conflict maybe a knee jerk reaction to the unfolding humanitarian crisis occurring at Uganda’s borders, but no effort has been made to highlight the plight of refugees.

Mr. Museveni was clear that the deployment of 1,200 troops was at the request of South Sudan’s President Salva Kiir, with the intention to secure installations such as State House and the Airport, but the reality is that Ugandan aircrafts had been militarily involved in bombing rebel held positions, making Uganda not only a government ally in the conflict, but also complicit in the unfolding conflict. 

Thus far, the United Nations has reported that over 240,000 people have been displaced during the two week conflict with about 15,000 fleeing across the borders to other countries. It is estimated that about 2,500 people cross the border into Uganda in what has been described as a “horrific violence along ethnic lines.” 

Even as the peace talks between Salva Kiir’s government and the Rebels led by Riek Marchar’s representative progress in Ethiopia, it is a fragile process with conflicting reports of stalling and agreements on what is clearly turning to political deal making situated around the oil fields of Unity state and the strategic towns of Bentiu and Bor. In all the political grandstanding, the push and pull between the rebel forces and the SPLA, there are about 1000 people who have been killed so far. The death toll may actually be higher, given the little information coming out of rebel controlled areas of the conflict.

What is disturbing thus far is the portrayal by Kenya’s media of the conflict as merely ethnic in nature. The biggest failure of the press is to not separate their own world views from every single conflict in Africa. This is telling of just how ingrained our tribal thinking is. From the onset of the South Sudan crisis, reporters have continuously painted a picture where Kiir, being government and also from the Dinka community, is pitted against the rebellious Machar and his Nuer tribesmen.

We have such a narrow and myopic perspective on life that we automatically super impose our own primitive and segregatory nature onto other people. Or perhaps it is the still raw memory of how Kenya rapidly descended into ethnic centered chaos after the controversial elections of 2008. In some circles the “peace talks” going on in Addis Ababa are some sort of “Nusu Mkate” arrangement.

The reality is that, just like during the Post Election Violence (PEV), there are casualties on both sides of the conflict and most of these are unarmed civilians, unable to defend themselves. War is a terrible thing, and with hordes of vulnerable refugees fleeing the battle zones it is unclear what measures are being considered to alleviate the growing humanitarian crisis by either side.

This conflict is not simply a falling out between the most populous tribes, but a deliberately orchestrated situation where the power behind the control of oil producing states is being fought over vigorously. With the entrance of Uganda, clearly on Kiir’s side, the chances of a lasting solution that is mutually satisfactory are fast dwindling. It is unclear what Machar’s end game is in all of this, but what is certain is that his initial demand that Salva Kiir steps down and pave way for a new election will not be met.

As one South Sudan citizen recently lamented on twitter, “The US Embassy has shut down, the foreigners have evacuated, and we are left all alone.” What is happening in South Sudan can really be described as bartering and bargaining over the souls of the S.Sudanese people caught up in the conflict. As the previous 21 year conflict has shown us, there can be no end to a war where the vast oil resources of the South are at stake. This is clearly exhibited by the inability of both parties to agree to a ceasefire.

It is really no surprise that the government of South Sudan has taken a seemingly hard-lined stance. With the claim of legitimacy, and the fact that Uganda is providing indirect military support, Salva Kiir may very well be in this for the long haul. The question then becomes; what happens to the people? Should Kenya in turn prepare herself for an influx of refugees in numbers similar to the height of the 21 year war?

When it comes to the matter of possible crimes against humanity being committed, it is very disheartening to recall Salva Kiir’s statements in May of 2013, when he was categorical about South Sudan not signing the Rome Treaty.

 “Whatever has been written in Rome has never been used against any one of their presidents or head of state. It seems that this thing has been meant for African leaders, that they have to be humiliated.” Kiir told a press conference during the Ordinary Summit of the African Union. (Daily Nation, 24^th May, 2013)

It is a dismal state of affairs thus, that while the oil is haggled over by politicians and foreign interests salivate over the prospects of either of their allies gaining the upper hand in the talks the people of South Sudan are left at the mercy of war mongers willing to sacrifice their lives in the name of retaining power. Indeed, the plight of the victims is now only a concern for humanitarian organizations, and not for the political leaders brokering the “peace” deals.

The Anti-FGM movement is steeped in sheer Racism

For a movement that is touted “the oldest singular campaign directly targeting Female Genital Mutilation”, the failure of the anti-FGM movement to reverse the spread of female circumcision in the 21^st century speaks volumes of the approaches taken.

The international campaign against female genital mutilation which adopted the acronym CAgeM in 2011 continues to specifically target cutting communities in Africa and Asia and has spread its activism to Europe and America to try and stem the practice among immigrant communities. Note – they focus on immigrant communities, and not the population as a whole. It is just a fact that their decision to focus on people of color globally is just racist.

How can an international movement only seek to stem female Genital “Mutilation” as they call it among non-white communities while pointedly ignoring the fact that white women undergo cosmetic genital mutilation themselves all in the name of labiaplasty? Is it the fact that plastic surgeons are the ones who perform this harmful procedure? Indeed, why is it that labiaplasty is even legal in western countries while FGM is illegal in the same country?

It’s just racism, plain and simple blatant in your face, RACISM.  Even the term female genital MUTILATION is an expression of this racism. That when women of color undergo cutting of their labia they are MUTILATED but when white women undergo the same cutting they are still WOMEN. The fact that one form of genital cutting is illegal while the other is legal is just telling of the mindset of those who create such laws. Mutilation is a word I despise, and for the purposes of this article I substitute the M in FGM to mean MODIFICATION.

What exactly is the purpose of labiaplasty in the first place? To modify white vagina into some anatomically androgynous Barbie doll pussy? According to a 2008 study in the Journal of Sexual Medicine, Up to 37% of women who undergo labiaplasty do it for aesthetic reasons only. The World Health Organization (WHO) defines female genital mutilation as "all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons." The WHO writes that the term is not generally applied to elective procedures such as labiaplasty. How convenient to decide that one form of needless cutting is legal, but another is not!

We keep being told that FGM is harmful to women, that women who are cut suffer dire consequences during birth. So doesn’t the white woman also undergo similar consequences after labiaplasty? How can a right thinking surgeon perform cutting of the labia for the sake of some ridiculous aesthetic ideal when he knows very well that this woman will face some dire consequence during child birth? It’s a bustling industry by the way, with the average labiaplasty plastic surgeon earning nearly 250,000$ USD in the US!

It’s clear why a doctor would do that. It’s because labiaplasty, done under sterile conditions, and with the right post operative care, is not likely to cause a danger to the woman’s health and also because it’s a lucrative industry.  In fact the sheer irony is that while FGM is declining among people of color, it’s on the rise among white people!

The question then becomes why not accord women of color the same health facilities should they wish to cut themselves? Why not allow women of color to make an informed decision on cutting their own bodies?

Well, because women of color don’t own their bodies. From birth, women of color are owned, by their parents, and then their husbands and in countries where FGM is illegal even the government owns their bodies!

Women from cutting communities have been so dehumanized that the FGM movement focuses solely on the vagina of these women and pays no heed to the fact that women can actually make a choice to cut their own bodies. The anti-FGM movement seeks to save women’s pussies from the women themselves!

To be defined as “primitive”, “ignorant” and “victimized” when you actually chose to follow a traditional practice is not only insulting, it reduces the woman to nothing more than an object to be humiliated.  It is no surprise that the practice of female circumcision refuses to die in cutting communities. Because when such racist insults are directed at you, simply because you are a person of color, you will do whatever it takes to cling onto what little dignity and self-identity you have.

It’s a well known fact that communities that cut attach great importance to circumcision and that value is hinged on the woman’s self-identity. Such that, when a woman is cut they are accepted, respected and are considered valued partners for marriage.

In a study by World Health Organization (WHO), covering 1,744 women aged between 15 and 49 in North East and North West Somalia, 90 percent of the women responded that they preferred that the custom be preserved (World Bank & UNFPA 2004). The fact is, within the Somali community, it is the women themselves who prefer and choose FGM despite the health risks involved. Indeed FGM is very common in Somalia, with more than 90% of girls being subjected to the most severe form of circumcision known as Infibulation. Infibulation is defined as “the removal of the labia minora (inner lips) and labia majora (outer lips). When the labial tissue heals, it forms a wall of skin and flesh across the vagina and the rest of the pubic area” (Wikipedia).  It’s usually done on prepubescent girls and as you can imagine it is quite a grueling and painful procedure. Despite this, the women themselves prefer it! One of the biggest campaign lies that the anti-FGM movement preaches is that the girls don’t have a choice. Clearly they do have a choice and they choose to be cut because it is what they use define themselves, as adults or because of communal values of virginity and purity. They choose FGM just as much as the western women choose it. Why is it that the western women aren’t considered forced into labiaplasty?

 It is quite surprising to note that even in a stateless country like Somalia; women can access professional health care when it comes to FGM. The World Bank (WB 2004) argues that the "medicalization" of the procedure started as far back as at the time of Somalia's independence, when a Lebanese doctor started carrying out the procedures at the Martini hospital in Mogadishu.  The simple reason for this is because these health professionals recognize that women can indeed have power and choice over their own bodies and are not just pussies to be saved by random white people.

What irks me the most about this anti-FGM movement is the lopsided tales of horror and the refusal to acknowledge that there are indeed legitimate concerns that compel women of color to cut their bodies. We are told how women of color and especially from the global south are in peril of losing their very lives if they cut their own bodies but there is no tandem recognition of the rights of those women over their own bodies, and the utter refusal to provide safe medical options for women of color who wish to cut their bodies. In fact the focus on genitalia even drives some activists to suggest that little girls in Britain should have their genitals checked routinely to prevent their parents from cutting them! What an utter violation to suggest and sheer child abuse to boot. Would they check little white girls’ vaginas? Because even white people take their daughters for labiaplasty!

The refusal by the anti-FGM movement to acknowledge that women of color attach equal value and importance to cutting as do white women is purely racist. That our values as people of color are insignificant compared to the aesthetic values of white people. It’s a refusal that tells us that our bodies are not ours to own and cut as we choose but the white women can cut themselves legally and safely. That even our circumcisers are “primitive” and brutal, while the western circumciser is a surgeon who is respected as a medical practitioner.

I challenge the likes of CAgeM to not only change the term “mutilation” to “modification” but to also actively advocate for safe medical procedures for women of color not only in the West but around the world. I challenge them to consider women of color as PEOPLE and not just vaginas. I challenge them to recognize that women of color have values and their values are just as significant as the values of white women. I challenge them to stop segmenting and racially applying the law but to be just and fair to all women. I challenge them to recognize that women of color are not “victimized” by the choices they make over their own bodies just as white women are not victimized. I challenge them to treat us with respect and accord us our dignity for once and to stop treating women of color as though they are just body parts.

The fact is, FGM is nearly impossible to eradicate as long as women attach a personal and legitimate value to the practice. It is utter hypocrisy and sheer bigotry for this sort of racist activism to reject these values simply because they are the values of people of color. Indeed the anti-FGM movement is just steeped in racism that dehumanizes people of color directly and it is an abhorrent practice that should never be tolerated in a free and just society. You cannot claim to be defending human rights while denying that women of color do indeed have rights over their own bodies and that access to adequate health care is also their right!

Pleasing everybody: Why Muthaura’s appointment is justified

Tribal loyalty will surely be the death of Kenya. If we are to believe what some young politicians in Jubilee coalition are postulating, President Uhuru Kenyatta will have to give about 5 top appointments per sub-tribe in Kenya to make these fellows happy. Never mind that there are innumerable sub-tribes among major tribal groupings and only a handful of key posts. OK, maybe they are not innumerable. We can count the sub-tribes but we cannot give appointments to each and every sub-tribe just because they are a part of Jubilee.

When indeed are we ever going to get reasonable? When are Kenyans going to abandon this stone-age thinking and just grow up? Take the appointment of Amb Francis Muthaura to head the LAPSSET project. I have had the pleasure of having a glimpse at Muthaura’s resume of achievements – it is mouth watering. Not just a civil servant, but an accomplished, high ranking civil servant with vast experience and outstanding credentials and proven service to the State for 40 years. Let’s face it; he is more than adequately capable of implementing the LAPSSET project and making it the visionary flagship project that will propel Kenya into becoming a middle income country.

I find it absolutely strange that such an ardent critic of this Jubilee government like me is forced to point out the sound logic behind appointing Francis Muthaura to sycophants who claim to be die hard supporters of Jubilee. But, sadly, this is what it has come to. The prevalent irrationality behind these people’s mentality is no longer aimed solely at the opposition but now, guns blazing, they attack their own leadership.

The most interesting thing is WHERE the attack on Muthaura’s appointment came from – MERU. That there were actually a handful of Meru politicians who were against the appointment of Muthaura to what is possibly the greatest infrastructural project in East Africa is just astonishing. Well, apparently, Muthaura is Meru, but not from the right kind of Meru. In other words, he is from a specific sub-tribe and this irks the other sub-tribes. Fortunately, some days later, the politicians decided to let that matter go and accept his appointment.

Meanwhile, in other parts of the country, politicians with far fewer expertise or credentials also received top appointments and these appointments were met with the same level of acrimony. To understand the situation better – We have political appointments going on across the country in various parastatals. In line with political reasoning, most of these appointments are merely figureheads – chairman of the board of this or the other authority and so on. Much of the contention on these appointments comes from within the very same coalition that is making the appointments. That a coalition is infighting is only the brink of the illogical battle going on within.

The first, absurd and totally irrational argument is that the President is appointing people who lost elections. Well of course he is! Because if you won the election that means you have an entire Constituency or County to run! You should be so busy that you don’t know if a day has 24hrs or 48! It makes absolutely no sense for someone who is already an MP somewhere to complain about running a government organization when his hands are already full running an entire constituency with various government organizations!

So why are some MPs making so much noise over these appointments? Well, in the case of Amb Muthaura, the problem they have is not just with his sub-tribe, but with the fact that Muthaura is indeed an efficient old codger. That’s right; the man is like an atomic clock; precise up to the last nano-second. It is no wonder that the President picked him to run LAPPSSET. Lamu Port and New Transport Corridor Development to Southern Sudan and Ethiopia (LAPSSET) includes:

 “… a new road network, a railway line, oil refinery at Lamu, oil pipeline, Isiolo and Lamu Airports and a free port at Lamu (Manda Bay) in addition to resort cities at the coast and in Isiolo. It will be the backbone for opening up Northern Kenya and integrating it into the national economy” www.vision2030.go.ke/index.php/pillars/project/macro_enablers/181

This is an awesome undertaking and involves 3 state governments, hundreds of suppliers, thousands of employees, and various ethnic communities; it is a vast project spanning several years and thousands of kilometers. Let us be honest, if there is anyone more qualified or suited than Francis Muthaura to head this project why have we never ever heard of this person before?

The truth behind all the complaints on Muthaura’s appointment in particular is the fact that with such a solid stable minded man at the helm, the flagrant plundering shameless sycophants had in mind will not happen. It’s that simple. That these hound dogs consider it a payment for their howling; to seize opportunity to run the government organizations and projects into the ground and leave the majority of Kenyans penniless and staring at the massive white elephants reminiscent of Moi Era embezzlement scams. I am tickled to no end by Muthaura’s appointment. It is a death knell to corrupt cartels.