By Maina Kiai

Tuesday, January 4, 2011



The Ocampo list is finally out and as expected, all manner of reactions are coming out, many of them quite frightening. And many of them are totally wrong. Predictably the attempts to turn this from individual responsibility to alleged community persecution are in high gear. This is a constant for the Kenyan political elite who enjoy the benefits of power, status and privilege as individuals but as soon as trouble starts, they try to turn it to a community issue…That is something that we still have to keep fighting.
More insidious is the idea that non-politicization by the ICC must mean that all ethnic groups must be represented on the list without regard to the evidence of criminality, yet we all accept that the main theatres for violence were in Nairobi, Eldoret, Kisumu, Nakuru and Naivasha. Now, the suspects are all innocent until proven guilty, but it’s amazing how Kenyans are so quick to take their political perspectives to international institutions. We opted for the ICC precisely because we did not trust that our institutions would be above political machinations and manipulations, and now because some of us are unhappy we are quick to try to pin the same machinations on an international process that no Kenyan has much influence over!
For me, one of the worst elements coming out is the idea that Mass Action is a crime. It is not, it can never be. In fact, it is a right, guaranteed by our new constitution, and also by international law. Mass action is NOT a call to violence. Mass action is not saying “destroy and demolish”. Mass action is simply peaceful protest. I bet that had this been allowed in 2007/8, we would have had less violence than we eventually did. It is a vent – a legitimate vent - for people to peacefully express their views and objections.
Yes, it can turn violent, and it does so in many cases, not just in Kenya but across the world. And when it does, the State must restore security and safety in a manner that is appropriate. Not by shooting people in the back. Not by suggesting that everyone out in the streets is a criminal. Not by raping women indiscriminately.
We need to protect and defend the idea of Mass Action and do so fiercely and jealously. Kenya’s move from total autocracy and dictatorship owes much to Mass Action - from 1990 when Jaramogi Odinga, Ken Matiba and Charles Rubia called for Mass Action to protest the one party state; to the mass action of the mothers of political prisoners in 1992; to the mass action led by Kenya Human Rights Commission from 1995 against extra judicial executions and against the state sponsored violence in the Rift Valley and Bungoma; to the mass action in 1997 on the need for a new constitution. Mass action has been a tool, a non-violent option, to spur change.
Now it is being called a crime by those who fear being held accountable for their own REAL crimes. If society cannot have a vent for peaceful grievances, then the likelihood of resorting to violence rises. So we must not succumb to purely political propaganda that wants to equate calls for mass action with criminality.
Of course if those calling for mass action also planned violence and destruction and rapes and displacement, then they should be held accountable. Produce evidence, take it to court. But then they must be held accountable for planning and implementing the actual crimes, not for calling for Mass Action.
My worry is that if we are not careful – if we spend are led by political basis instead of logic and wisdom - we will cut off our noses to spite our face, as the saying goes. That is, when this ICC issue is over and we next need to protest the activities of our leaders (I am certain that the day will come, maybe sooner rather than later) calls for Mass Action will be treated as crime…But how else can a society force arrogant, deaf and greedy leaders to listen up, if not with peaceful protest?