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Friday, July 10, 2009

End of the road: Are we about to see the resolution of impunity in Kenya?

Kenya’s attempts to delay punishment of top suspects accused of crimes against humanity on Thursday backfired after chief mediator Kofi Annan abruptly handed over the secret Waki list to the International Criminal Court.

What started as recommendations for the formation of a commission of inquiry into the violence following the presidential election in 2007 is now formally an international judicial matter and Kenya’s options have all but ended. Irritated by the deadlines set by the Panel of Eminent African Personalities, which brokered a deal to end the violence last year, the government sent a delegation to Mr Annan and later to negotiate directly with the prosecutor at the ICC, Mr Luis Moreno-Ocampo.

The reception in Europe was far from warm. Mr Annan thought Kenyan lacked the political will to punish the perpetrators of the violence. His advice was for the leaders to speak to Mr Moreno-Ocampo first and then he would communicate his decision. He summoned the other members of the panel of Eminent African Personalities, Mr Benjamin Mkapa of Tanzania and Ms Graça Machel of South Africa and they decided to hand over the list of suspects to the International Criminal Court.

His “communication” on Thursday caught everyone by surprise and threw the government into a panic.

Both the Party of National Unity and the Orange Democratic Movement have paid lip service to the need to end impunity without real commitment to punishment for crimes against humanity. ODM, according to a party apparatchik, is “focusing on... the officials who were in charge when innocent people were killed by police.” The feeling in ODM is that more of PNU people stand to be prosecuted than its own. The dossier it sent to the International Criminal Court in January last year consisted of evidence of murder by the State, including postmortem reports showing that victims had been shot.

On the other hand, PNU appears to believe that the bloody crackdown on protesters was a law and order issue, which is necessary to preserve the state, and that the Mungiki slaughter in Naivasha and elsewhere was “spontaneous” retaliation for killings and mass evictions reported in the Rift Valley and elsewhere. In other words, ODM started it. In both parties, those responsible for the slaughter believe that they could threaten new violence to deter prosecutions.











Some have argued that what is needed is “healing” and “reconciliation” rather than prosecution.

This explains the fashionable idea of referring even the worst criminals to the Truth, Justice and Reconciliation Commission. Justice minister Mutula Kilonzo is on record as having said that a special tribunal would only be formed if it did not threaten stability, an indication that there has been no single-minded pursuit of justice.

What started as recommendations for the formation of a commission of inquiry into the violence following the presidential election in 2007 is now formally an international judicial matter and Kenya’s options have all but ended.


All these are moot arguments now: According to the agreement entered into with the International Criminal Court, Kenya must establish a court or tribunal to try the suspects, offer proof that it was protecting witnesses and preserving evidence — all by September. The court or tribunal must not only be accepted by Parliament — a near impossibility given MPs’ hostility to a local tribunal — but must also have the broad support of many sectors of the society, according to Mr Annan’s letter. To build consensus and get MPs to pass the necessary laws in three months would require the kind of commitment to ending impunity that Kenya is yet to demonstrate.















On Thursday, Mr Annan separately called President Kibaki and Prime Minister Raila Odinga to inform them of his decision, sparking a flurry of meetings at Harambee House, the President’s office, attended by both the President and the PM. The two, it appears, did not expect Mr Annan to hand over the envelope to Mr Moreno-Ocampo, especially after last week’s visit to Geneva and The Hague by the government delegation. “Mr Kofi Annan today (Thursday) informed President Kibaki and Prime Minister Raila Odinga that the Panel had transmitted to the Prosecutor of the International Criminal Court the sealed envelope and supporting materials entrusted to him by the Waki Commission on 17 October 2008,” Mr Annan’s statement said. To underline the importance of his calls, Mr Annan also wrote separately to the President and the PM to inform them of the decision taken by the panel. He said the decision was reached after the government delegation of Cabinet ministers Mutula Kilonzo, James Orengo and Attorney General Amos Wako met Mr Moreno-Ocampo. The prosecutor gave the government until end of September to show proof that it was prosecuting the prominent people behind the violence in which more than 1,133 Kenyans were killed.

Mr Moreno-Ocampo’s office confirmed receiving the sealed enveloped and materials bearing evidence of the killings from Mr Annan. The ICC chief prosecutor, who is Addis Ababa, Ethiopia on a visit to several Africa countries, has stressed no one will be spared if the government fails to meet its side of the bargain. Sources said the meeting between President Kibaki, Mr Wako, Mr Kilonzo and Mr Orengo did not agree on the kind of judicial mechanism that they would put in place. ODM had expressed fears that a special division of the High Court may not meet international standards. Mr Wako, Mr Kilonzo and Mr Orengo were tasked to quickly work out a judicial mechanism that would be acceptable to MPs, The Hague and the public.

Although Mr Annan had welcomed the government’s efforts to either establish a local tribunal or a judicial mechanism to try the suspects, he declared that it must meet international standards and be agreed on by all Kenyans. However, he hit at the slow pace of putting in place a mechanism and warned that impunity must be tackled for Kenya to embark on a fresh chapter. He reminded the government that the public was becoming restless with the delay in implementing reforms under Agenda Four of the National Accord. “Justice delayed is justice denied. The people of Kenya want to see concrete progress on impunity. Without such progress, the reconciliation between ethnic groups and the long-term stability of Kenya is in jeopardy,” he warned.

A draft Cabinet paper on the establishment of the special court has been submitted to the President and the PM, although it appears that it will meet strong opposition in Parliament. The proposal seeks to set up a special division of the High Court that will be composed of foreign and local judges. The prosecutor and the investigator will be non-Kenyans.

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