It's an accusatory proposition that goes like this: If you agree to send your compatriots to the ICC, you're implicitly accepting or endorsing the view that Kenya is a ‘failed state' (whatever that phrase means) and contributing to the impression that our justice system is ill-equipped to handle politically motivated crimes of the sort that end up in The Hague.

It's also a perverse dare intended to intimidate Hague-option enthusiasts. And it's repeated at even the highest levels of government, where politicians motivated by self-interest are stalling for time, hoping to prevail in the end. President Kibaki and Prime Minister Raila Odinga, in whose names hundreds were killed following the disputed December 27 elections, have made it clear they prefer local prosecutions. Since the main parties in the coalition government were tainted by the violence, the stalemate in Parliament over the special tribunal should be seen not as a PNU-ODM dispute but as a factional fight within the coalition government.

Justice Minister Mutula Kilonzo, who must be assumed to speak for the anti-Hague faction, insists that Kenyan courts can try the suspects locally, saying, as quoted in The Standard, "We are not a failed state and by handing over our people to the ICC we shall be telling the world that Kenya has failed, which is not the case." The ‘failed state' argument has become the rallying cry of the anti-Hague faction - a fallacy being used to inflame public opinion and turn it against the ICC.

Kilonzo's logic is manifestly faulty - hasn't Parliament so far failed to create a system for trying the suspects at home? Aren't our courts susceptible to political manipulations? Doesn't the intransigence of members of Parliament signal to the general public that the politicians aren't serious about bringing the suspects to justice? The arrogance in Kilonzo's remarks is striking (making one wonder whether the political elite realize how close our country came to the abyss). Yet, his reasoning isn't being questioned.

Instead, Kilonzo's words are lauded as a mark of the proper assertiveness one should expect from the leaders of a sovereign nation that doesn't want to be treated like a banana republic. Since we are a nation of mimics (if not a banana republic) devoted to the endless production and reproduction of political banalities, the ‘failed state' fallacy has been picked up from the Press, repeated as a legitimate argument on blogs and has turned up in dinner-table chatter, where defensive Kenyans blinded by ethnic loyalties spit it out as gospel, without any hint of embarrassment. 

In the ensuing prattle, the debate we ought to have - how to punish those who planned the killings and ethnic purges that pushed us to the edge of civil war - is put off for another day. But maybe such a debate isn't necessary. Kenyans recognize that the issue is not whether we should prosecute the still-unnamed suspects, but whether our courts can be trusted to dispense impartial justice in cases that may end up ensnaring some big names in the political elite. 

The general public, recalling such fiascos as Goldenberg and Anglo Leasing, is skeptical. Ordinary citizens tend to see our courts not as impartial dispensers of justice, but as protectors of the powerful. That's why many of them prefer the Hague option - they can't imagine how a local tribunal can be impartial when it's staffed by jurists selected by MPs some of whom may become the subjects of its prosecutions. Kilonzo's vehement anti-Hague posture, therefore, reflects not the anxieties of the public, but the nightmares of the ruling elite.

That explains the appeal to pathos cited above - the attempt to excite our patriotism in order to aid the ruling elite's anti-Hague propaganda efforts, in other words, to get us all to feel like targets of an overbearing imperialist court and tell the ICC to go to hell. Still, even if the public were overwhelmingly in favour of a local tribunal, it looks unlikely that such a panel would ever be created. The deadlock in Parliament threatens to persist. And if the ICC ends up taking the cases, it'd be years before any of the suspects goes before a judge. Hague-option opponents will have triumphed.

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 * UPDATE: In fact, the deadline seems to be September 2009, rather than July 2010.