Walubengo's Den

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Let me tell you a story. In the Lord of the Rings, when Frodo and his companion are almost done in, they are miraculously saved by giant birds. In the Avengers, when Earth is about to be conquered and colonised, our team of superheroes led by my nigga Thor, Hulk and the irritating Iron Man come together and save the day. In the Dark Knight Rises our masked hero finds his strength and saves Gotham from catastrophe at the last minute. In Star Wars, before Luke Skywalker is dispatched to the afterlife by his father Darth Vader (not Gladys Boss Shollei, hehe) he triumphs. It is almost always a common feature in literature, theatre and film. When everything seems impossible, and the hero or heroes are at their wit’s end with no hope in sight, something or someone miraculously swoops in and saves the day. Perhaps it is based on truth and experience; perhaps it is normally included to satisfy that very human need for a happy ending. This stylistic device is normally known as Deus ex machina; which is Latin for God in the machine.

Kenya finds herself in a similar state. The trials at The Hague, terrorist attacks on our very own territory, a pending renewal of war,  tremendous corruption, a struggling economy, overt and covert tribalism, domestic and international pressure etc etc.  We are, it seems, in our very own movie, our very own story which will be recorded in the annals of history. Now this is the question: If things go badly for us, is our story going to be a tragedy or a misfortune? Allow me to explain the difference. In a misfortune, bad things happen to the protagonist through forces beyond his or her control. On the other hand, in a tragedy the seeds of destruction lie within the protagonist himself and he brings about his own downfall. Think Achilles, Samson, King David, Alexander the Great, Luanda Magere, et al and many others that are not so glamorous or well known.

In this article, I will focus on the issue of Kenya and the International Criminal Court, or depending on your vantage point, Uhuru, Ruto and the ICC. Allow me to firstly state that the ICC grossly underestimated Kenya. They underestimated the capacity of our body politic. They underestimated our capacity for bribery, intimidation, propaganda and concerted slipperiness. We even actualised the term ‘shuttle diplomacy’ for heaven’s sake. The thing is, after this particular episode one of the two parties will be irreparably changed. Perhaps there is not enough room on the planet for both Kenya and the ICC. Both have their flaws; the ICC has dragged its feet – it would have been easier to expedite the trials and try our ‘Big Two’ before they ascended to the leadership of this country. The ICC could also have handled the issue of witnesses better. Kenya on the other hand, or rather our political leaders, lie, shape shift and avoid responsibility with unmatched zeal. It has taken me a while to admit it, but the issue of the court being seen as anti-African and neo-colonialist is real. On the other hand, it will do us well to remember that more often than not it is dictators and despots who trump the sovereignty card. Idi Amin claimed sovereignty while massacring and literally eating his people. Apartheid South Africa did the same while oppressing a whole race. Bashir did the same while committing and/or abetting genocide in Darfur.

We spit in the face of Europe and America, yet the truth is as foreign partners they have helped us more than any other nations have. Did you see any Chinese Special Forces or forensic teams at Westgate during or after the terrorist attack? The aid we have gotten in terms of food, medicine and military expertise is from the west, our so called enemies. But allow me to make this clear, I do not believe the west has the moral locus standi, the moral ground to lecture us on issues of human rights and justice. Not after the atrocities they committed through colonialism, slavery, unjustified war and economic exploitation. But another simple truth is that no court in Kenya, will try, let alone convict, Uhuru Kenyatta.

On the other hand, Mr. President, methinks that currently you are surrounded by sycophants and yes men. Everyone in your government, parliament and senate seems only too eager to bow down, kow-tow and kiss your feet. Recipe for disaster, this is. It surprises and pains me to see intellectuals like Senator Kithure Kindiki, who was an admired teacher of mine in law school, and Kipchumba Murkomen, who I believe also lectured at some point (though his impact was neither here nor there, in my humble opinion), changing their ideals to suit the political climate. Let me make it clear that it does not augur well for me for my President to be tried in court, especially a foreign court. To be honest, I don’t want this to happen. But what about the 1,300 dead post election violence victims? There was murder, persecution, horrible assault, rape and destruction. Shall we pretend it never happened? And please save me all the bullshit about moving on, and accepting results as our impotent and spectacularly mindless media tirelessly begs us to. The bible, if you believe in it, says that peace will reign in the land when there is justice. As my priest asked me just a few days back, should we sacrifice the rule of law at the altar of power? As a country we have hardly prosecuted anyone in connection with that dark period in our history. The Department of Public Prosecution is too busy trying to convince us that Kethi Kilonzo stole a voter acknowledgment slip to be bothered with such trivial matters. Our judiciary is too busy battling Darth Vader and giving the ‘Shah’ Ahmednasir Abdullahi airtime, as they jostle and push to figure out who will replace the venerable chief justice Willy Mutunga, who I think has done an admirable job by the way.

The ICC has already made Kenya better. They have done what we would never have done on our own. There is a clear message to all who think they are above the law. As the erudite Charles Kanjama wrote in a recent article, and I paraphrase, is there anyone who is above the law? Is the law not meant to be our last and most solid refuge? Shall it apply to some and not to others? But on the other hand, should we allow our democratically elected President to be tried in a foreign court? Let us ignore the knee-jerk utterances of our foreign secretary Amina Mohammed and the meaningless barking of our legislators led by Aden Duale, and overseen by the boorish Justin Muturi (Do we know that he is third in line to the presidency? God forbid, if anything happens to our prez and his deputy we are stuck with this clownish bully for at least 90 days, God help us). These are the questions we need to ask ourselves, the issues we need to weigh, and they are indeed weighty. If an arrest warrant is issued for our Commander in Chief, sanctions are sure to follow. And it is you and I, the common man, who will suffer. Not the prince raised in state house (No disrespect intended) and not the ‘Hustler’.

I honestly do not know the answer to these questions, and I won’t pretend to. In my pedestrian mind, I would advise the President and his deputy to attend the hearings, but not show up on the day that judgement is issued. Yeah I said it.

We cannot rely on Deus ex machina. It might be a true miracle, or it might just be nonsense. But either way we have to rely on Kenya ex machina, Kenya in the machine. We must craft our own destiny, we must be the God that saves us; we must be our own salvation.



Author: Walubengo's Den

Lawyer, Entrepreneur and Development Worker


  1. Nice piece Walubengo. I have also lost respect i had for those two, very visible sycophants Murkomen and Kindiki. Politics affected their intellect.

  2. In international law and politics,the element of state sovereignty remains socrosant.No doubt,the ICC is an important international judicial organ that sees to the trial and prosecution of all war crimes offenders and all forms of genocidal offences commited by political leaders,other persons and institutions in any part of the world where the internal or domestic judicial institutions failed to or is incapable of trying and prosecuting such offenders as justice is a universal concept which must not only be done but manifestly seen to be done.However,the immunity clause in the constitutions of countries where they exist,protects a serving president and his vice from arrest,trial and/or prosecution while in office.The overall intendment of this immunity clause is far from encouraging arbitrariness but to avoid unwarranted distractions of the president or his vice.They can only be arrested,tried and possibly prosecuted at the expiration of their tenure of office.Kenya is a sovereign nation and the provisions of her constitution remains sovereign.The ICC’s call for the trial of the Kenyan president and his vice over post-election violence some years in Kenya,is an affront on the country and undermines her sovereign stutus.In so far as ICC could not try Uhuru Kenyata and his vice prior to their election as president and vice preident of Kenya,they cant be tried again until their tenure of office expires.This is a constitutional issue,sovereignty and international law.At worst,Kenyata could call the bluff of ICC to enable him and his vice concentrate in their rebuilding effort in Kenya and providing the dividence of democracy to the people of Kenya.This is my humble opinion on the Uhuru Kenyata vs ICC issue.

  3. Well written piece! Still dumbfounded that we hold prayers for the principal two while thousands of families still grieve for their loved ones. I can’t even begin to imagine their pain. Yesterday, heard a witness saying she saw mounted heads in Eldoret. I think us, the middle class in Nairobi, are so far removed from this, it might as well been another country. We can do a lot more than creating twitter hashtags.

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