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Wednesday, July 29, 2009

Nemo iudex in causa sua

No man may be judge in his own cause, writes Lord Alfred Denning in The Just Judge.

Although this principle originates in the courts of law, it does apply with equal force to all matters of public interest where a danger exists for private need to interfere with the common good.

The current cabinet impasse over the best way to address the crimes and injustices committed in the aftermath of the 2007 elections, is just such a matter. In the interests of justice, we can safely say that save for Gavin MacFadayen, Pascal Kambale, Philip Waki, Luis Moreno-Ocampo and a handful of his assistants, no one knows the suspects on the list of 11 individuals deserving further investigations in connection with the post-election violence.

Yet the Waki report — which is the cause of all the anxiety in Kenya — shares many attributes with the bikini: it is revealing enough to sustain interest, while covering up the essentials.

Even then, it makes no secret of the fact that some six cabinet ministers are on the list of 11 individuals suspected to have planned, directed and financed the violence. These six individuals continue to sit in Cabinet meetings when debate on whether to try the suspects through a Special Tribunal or recommend that they face justice at the International Criminal Court in The Hague.

None of the reports about those heated meetings has suggested that a single individual has removed himself or herself from the proceedings to avoid the mere appearance of a conflict of interest. Those concerned can argue quite correctly that they do not know that they are on any list and thus deserve to enjoy their full rights as members of the cabinet. This duplicity is what allowed this same cabinet to approve the first Bills that attempted to set up a special tribunal. Those proposals omitted a critical recommendation from the Waki report – that those named in connection with the violence would stand down from public office until they had been cleared. This omission alone soured the mood in Parliament and forced MPs to start looking out for their own interest.

So, Kenya is back where it started — at a rendezvous with fate. The government’s own watchdog, the Kenya National Commission on Human Rights, has published On the Brink of the Precipice, which is an account of the post-election violence. Many people, mostly those named in connection with various transgressions, have dismissed the report in highly uncharitable language.

Whatever its shortcomings, however, the report provides the first opportunity for people who know they are innocent to rescue themselves from the decisions on what happens to the suspects. In this regard, the six cabinet ministers whose names appear in the KNCHR report can demonstrate to Kenya that they have nothing to hide by staying away from Cabinet deliberations. With the kind of cabinet size we have, one can argue that these ministers constitute only 15 per cent of the whole and cannot sway the vote one way or another. One can also argue that if they are indeed guilty, they can still influence their friends without attending.

These concerns are valid, but what is more important right now is a demonstration that cabinet ministers can publicly acknowledge their personal interest — however remote — before taking a decision on behalf of the whole country. As it is, we have actual and potential suspects frustrating the entire country’s search for closure on a painful and regrettable chapter in its history.

Should they fail to do so, Prime Minister Raila Odinga and President Kibaki can stop pretending that their hands are tied and ask them to take the pep-walk. When— not if — the Bills for establishing the tribunal go to Parliament, the 16 MPs who have been tarred— however unfairly — by allegations of incitement, planning, directing or financing the violence also need to publicly demonstrate that they have excluded themselves from the decision that the House takes.

This is the only way the country’s leadership can claw back its damaged credibility.

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