KENYA: Has Anyone Been Raped to Meet the International Standards?

Reading the minority report of the International Criminal Court declining to authorise investigations into the post-election violence, one cannot help but be impressed by its sagacity and depth of knowledge of the situation in Kenya.

Judge Hans-Peter Kaul rightly observes that the victims of the violence were not raped, injured or murdered in a manner that satisfies international standards. Those rapes and murders were of such a low standard that they should not be tried outside Kenya.

Asking the ICC to take up the trivial cases could distract it from hearing proper cases of murder and rape that occur in a manner befitting its international stature. To prevent cry-babies coming to the ICC with tales of genocide, murder and rape, Kaul sets forth two very reasonable standards.

Firstly, these crimes must have been committed as an attack on civilians. In the Kenyan context, there was no civilian population during the post-poll violence. The peasants and slum dwellers shot with live bullets in Homa Bay, Kibera, Mathare and Mumias were armed and uniformed.

The women gang-raped in Naivasha, Nairobi and Mombasa were not civilian populations. They were all identifiable as women, all had physical features and spoke languages that were a perfect substitute for uniform. They might as well have been from the army.

Secondly, these crimes must have been committed by the state or an organisation. Now Kaul wisely notes that three brothers meeting over dinner to plan how to torch houses while their occupants sleep is not organisation.

An organisation has to be structured like a state, complete with a bureaucracy, office bearers, seal, coat-of-arms and a military wing. Should it lack any of these things, as shaggy-dog outfits like the Mungiki and the Taliban are likely to, they cannot claim to be organisations.

So every time they kill, rape or do anything else criminal, they do not even get the ICC to bat an eyelid.

Why, if it were to entertain crimes committed by such minion units, the ICC would lose funding from member states and respect in the eyes of the public, as well as invite questions from the international community on its exact relevance.

For an action to have been committed by the State, one would have to see a Cabinet memo, right? A police force, a civil service, or any senior officer acting on his own, cannot be blamed on the state.

For anyone to accuse police of implementing a state policy through gang-rape and murder, they would have to be certain that no officer helped civilians to escape to safety in another part of Kenya.

Now to specifics: The good judge noted that, in Nairobi, the fact of "local politicians, civic candidates or aspirants, councillors and business people meeting and allegedly financing the violence do not form an 'organisation'".

There was no chain of command in those meetings, and the planning ended as soon as it started. Were it, perhaps, to have continued for a year -- long after the violence had ended -- maybe the judge might have wanted to consider it.

After all, if Kenya wants to be a democracy, politicians should be allowed to create what the judge calls "a partnership of convenience for a passing occasion" -- especially if they are careful enough not to issue membership cards to anyone or create a leadership structure, complete with an organo-gram.

In the North Rift Valley, the judge rightly refuses to be impressed by the fact of a few people bumping into one another in an Eldoret hotel for a cup of tea as a meeting.

They did not sit in order of seniority, there was no pecking order at the meeting, and it did not even last a year. Worse, no membership cards were printed or issued.

In Western province, police protected civilians and also attacked people. Thus, you cannot say there was an "attack directed against the civilian population".

Likewise, the judge observes that sending army and police officers to Mt Elgon district targeted the Sabaot Land Defence Force -- serves them right -- and did not constitute an attack on the civilian population associated with the rag-tag army.

Since the violence was generally chaotic, it cannot have been organised. Chaos is the opposite of organisation, especially at The Hague.

In short rigt, the judge was puzzled that local politicians, civic aspirants and councillors "may have been involved in the violence one way or the other", but that did not meet the threshold of being organised.

If people go to peace meetings, they cannot go to others and plan attacks. They choose only one meeting and go to it, period. Who do they think they are, attending two types of meeting?

Nyanza, on the other hand, provided no evidence of the judge seeing an organisation. "Local individuals of influence and local businesspersons being involved do not form an organisation with a certain degree of hierarchical structure acting over a prolonged period of time," notes the judge.

Better still, these leaders joined their religious counterparts in appealing for peace, so they could not have been part of the violence.

Claims that some local politicians funded youths to destroy property in Coast province cannot suggest there was an organisation that had a pecking order, or was active for a long time, because there are several accounts to suggest that some of the violence was spontaneous and opportunistic.

The nature of revenge violence in Central province, in response to stories of incoming displaced people, cannot be seen as organised, because there was no leadership structure and card-carrying membership.