KAKAMEGA, KENYA – Lucas Mbakaya, 22, has been in physical and emotional pain since the post-election violence swept over his country in 2007 and 2008. During the violence, a police officer shot him in the groin. After he was shot, his wife left him because of the nature of his injuries, Mbakaya says.
He spent three months in the hospital. From then on, he has carried a urine bag everywhere he goes. He is now back in the hospital with a bladder infection because he says he couldn’t afford to maintain the urine bag.
“I could not afford to go back for [the] cleaning and changing of the urine bag every week,” he says. “I didn’t have the money.”
A visit to clean and change his urine bag costs him 300 shillings, $4 USD, he says.
From his new hospital bed, Mbakaya vividly recalls the day when he says hell broke loose after the disputed presidential election in 2007, landing him in the hospital the first time.
Like other Kenyans, Mbakaya, a “boda boda,” or motorcycle operator, was eagerly awaiting the election results in one of the restaurants in the town of Kakamega.
“No sooner had [the] results been announced than riots started,” he says. “Everyone was running, and I didn’t know what was happening. When gunfire started, I realized it was not a light matter, so I decided to hurry to the market to get some vegetables and head home.’’
Mbakaya says his trip to the market was cut short when a policeman intercepted him and shot him between his legs, destroying his genitalia. Two other young men near him were also shot – a university student, Michael Segero, who died instantly, and Godfrey Licabo, who was shot in the upper right arm and rushed to St. Elizabeth Hospital with Mbakaya. Licabo was discharged after two weeks, but Mbakaya stayed in the hospital for three months.
When the hospital staff realized he had no relatives visiting him – two of his siblings are believed to be dead and his sister is mentally impaired – to address his rising bill, he was asked to leave and receive outpatient treatment. But he couldn’t afford that either, leading to his current bladder infection. Still, he says his hospital visits aren’t the worst part.
“The worst part of my life is when my wife decided to run away due to my condition and left me with the children,” Mbakaya says.
Relatives then took in his two daughters, ages 3 and 6, because they said he could not take care of them, says Caroline Lisanza, a villager familiar with the family.
Mbakaya says he feels bitter and helpless because the officer who shot him was transferred to a nearby town without being charged. Samuel Segero, the uncle of one of the young men who died during the riots, is a police chief in the area. He says he can’t disclose much about the officer because he is a fellow government official.
“All I can say is that the policeman who shot Mbakaya is known to most people in Kakamega,” Segero says. “Why he hasn’t been arrested is another thing altogether.”
While Mbakaya and other victims of the post-election violence continue to call for justice, President Mwai Kibaki is trying to withdraw Kenya from the Rome Statute, an international treaty that seeks to have perpetrators of genocide and serious international crimes prosecuted by the International Criminal Court, ICC. Kibaki has asked that the six Kenyans whom the ICC has identified as responsible for inciting post-election violence here in 2007 and 2008 be tried in the Kenyan system and not by the ICC. Throughout Kenya, many have denounced this request, saying suspicious timing indicates it may be an attempt to shield the six prominent men charged by the ICC. Government supporters, however, says Kibaki’s request to serve justice locally is a positive sign of independence. Meanwhile, victims of the violence who were injured and hundreds of families who are still displaced continue to suffer.
The debate was sparked by the announcement of the “Ocampo Six,” the four former and current government officials, former police commissioner and radio broadcaster that ICC prosecutor Luis Moreno-Ocampo has charged with orchestrating post-election violence. All six say they had nothing to do with the violence that left 1,300 Kenyans dead and more than 300,000 displaced in early 2008 after both presidential candidates refused to step down after the 2007 election.
Many Kenyans decry Kibaki’s request to withdraw from the Rome Statute, suspicious of its concurrence with the charges against the Ocampo Six.
“It beats logic for some members of Parliament to start calling for [the] withdrawal of Kenya from the Rome Statute at this point in time,” says Tom Chavangi, a former magistrate. “This is the highest order of impunity by politicians who only care about their interests and not the interests of Kenyans.’’
Godfrey Musila, a transitional justice lawyer and senior lecturer at Kenyatta University, says that ordinarily a country may withdraw from international treaties, but that the timing is suspicious.
“The only reason I suspect members of Parliament want to pull out from the Rome Statute of the ICC is to save the Ocampo Six,’’ Musila says.
Many Kenyans also disagree with Kibaki’s request to try the cases locally. Musila says that Kenya lacks the necessary mechanisms, like special chambers of the high court or even a supreme court, to handle such cases. He also says that it’d be unconstitutional for a supreme court to hear cases that transpired before its formation.
“To have the perpetrators of the post-election violence tried locally, even with the formation of a local tribunal or a supreme court, will be unconstitutional bearing the fact that these two will have been constituted after the occurrence of a crime,’’ Musila says.
Article 127 of the Rome Statute stipulates that a country must give a year notification to withdraw from the ICC and that a withdrawal would not affect the proceedings of already reported cases. Gladys Mwariri, a human rights lawyer and an advocate of the High Court of Kenya, says she doubts a supreme court could even be created because the official in charge of nominating judges, Francis Muthaura, is one of the Ocampo Six.
“Even if Kenya withdraws from the statute, the ICC cases will not be tried locally,” says Nelly Kamunde, another High Court of Kenya advocate.
Josphat Nanok, a member of Parliament, MP, says this should be no surprise to Kenya.
“We got into the statute knowing what we were delving in[to],” Nanok says. “We wanted to bring impunity to an end. Personally I am for the idea that ICC should take its full course and that it’s only individuals who want to withdraw from the statute and not the whole country.”
Still, there are others who support the notion that Kenya should pull out of the statute. MP Simeon Lesrima, assistant minister for internal security in the office of the president, says the cases should be handled locally.
“I don’t support the idea of [the] ICC because it is a selective process of justice dispensation for the big tribes only,” Lesrima says. “Why is it only that when big tribes fight, they are referred to the ICC and not the small tribes who are massacred daily? I think we need to withdraw from the ICC and reconcile our communities locally.”
Both the Intergovernmental Authority on Development, which includes Kenya’s neighboring countries, and the African Union have backed Kibaki’s request that the ICC defer its charges for a year to let Kenya try the Ocampo Six itself. But the final decision is up to the U.N. Security Council. The United States has veto power in the council, and U.S. Ambassador Michael Ranneberger says his country supports a continuation of the ICC-mandated process.
This month, Alfred Mutua, Kenya government spokesman, urged Kenyans to be patient with the process. Kibaki said his Grand Coalition Government had begun to make critical appointments in the judicial system to ensure that the country had a competent and credible system to handle post-election violence cases.
While the debate continues to pull in various directions, 31,000 victims of the post-election violence were still displaced as of last year, according to a U.N. Office for the Coordination of Humanitarian Affairs report. Because of poor conditions in the camps for the displaced, others have died, children are malnourished and women continue to be raped, according to a report by Nairobi Women’s Hospital. And Mbakaya is back in the hospital.
Mbakaya, who has no formal education, says that he used to earn money by running small errands for people but can’t anymore because of the gunshot.
“Now I cannot do any of these because I feel uncomfortable and a little pain when I strain,’’ says Mbakaya, as his eyes fill with tears.
Mbakaya and Licabo say they have recorded their statements with the Kenyan Truth, Justice and Reconciliation Commission, which the government approved to investigate historical injustices and gross human rights violations from 1963 to 2008. The two and many others say they hope that someday justice will prevail.