Surprise, surprise! It now emerges that the change of mind by principals in ODM and PNU regarding the implementation of the Waki report had nothing to do with the interests of Kenyans at large.
It is
instead a cynical attempt to keep instigators and perpetrators of the
post-election mayhem away from the hands of prosecutors at the International
Criminal Court.
[T]he Nation learnt that
the fear that post-election violence suspects could be taken to the ICC at The
Hague, The Netherlands, is behind the change of mind by some MPs within PNU and
ODM.
Sources said PNU leaders were taken through the Waki report and its
implications if a local tribunal was not formed by lawyers Mutula Kilonzo who
is also Metropolitan minister and former Kanu chief whip Justin Muturi.
Mr Kilonzo managed to convince 10 Cabinet ministers allied to PNU not to
dismiss the report as this would land the suspects in the ICC....
Mr Kilonzo, Mr Sirma, MPs Bonny Khalwale and Cyrus Jirongo said MPs had read
and understood that it was futile to dismiss the Waki report when it had a
self-implementing mechanism.
Yesterday's 9pm TV news
reports showed Deputy Prime Minister Musalia Mudavadi recommending adoption of
the report on the basis that it would be easier to manipulate a local tribunal
than to deal with the ICC. In fact, the Daily Nation further reports that there
are already moves to "propose amendments to the Waki recommendations to
ensure that instead of having two foreign judges and one local in both tribunal
courts, two judges should come from Kenya" once the report is tabled in
Parliament. (Since this was not a Parliamentary report, it is unclear on what
authority the MPs would amend it.)
It is thus clear that
there never was any intention of ensuring that those responsible for
the rape, murder and displacement of thousands faced justice. On that score
alone, we should do away with the whole idea of a local tribunal. Since both
parties were keen to report one another to the ICC in January, I think we
should grant them their wish and let Luis Moreno-Ocampo have his way with them.
Fiat
justitia, ruat coelum (Let
justice be done, though the heavens fall)!
Patrick Gathara
About the author:
Patrick Gathara is a Kenyan cartoonist and the Secretary General of Katuni, the East African Association of Cartoonists. He writes/ draws regularly on political matters and is Politics and Society Executive Editor at KenyaImagine.
The ICC versus Kenyan Tribunal written by Daktari , November 16, 2008
Vey interesting post. The ICC is based on the principle of complimetarity, which means that it only takes up cases whereby national jurisdicions are unwilling or unable to prosecute crimes of international concern.
Kenya would not, as a matter of law, be able to escape the jurisdiction of the ICC by instituting a sham tribunal. Indeed, if the tribunal is flawed, or hands out petty sentences, that in itself could be interpreted as its 'unwillingness' to prosecute which would then revert the whole matter to the ICC.
Having said so, I do not think that these leaders should be delt with by the ICC. Kenya is a sovereign state with a judicial system that is built on Kenyan values and traditions. The crimes were committed in Kenyan by Kenyans and therefore the tribunal ought to be Kenyan.
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... written by Masaa , November 16, 2008
These goons who helped in perpetrating violence should be tried by the ICC. Indeed, they were the same lot who initially had no faith in the Kenyan judicial system and were busy payukaring calling for the Hague. The Hague is here so let everyone be made answerable. I am loving every bit of it and all that hate campaign that was previously carried out and the subsequent violence will hopefully be a thing of the past.
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... written by Daktari , November 17, 2008
Masaa I see where you are coming and ofcourse the alleged criminals must be prosecuted.That said, they are innocent until proven guilty and more emphasis must be placed on the better method of prosecution.
It is important to remember that the ICC is merely an African Court in the Hague, which sends a strong message that African countries are unable and/or unwilling to prosecute. Indeed, the ICC is already having difficulty with the cases concerning Sudan, CAR, DRC and Uganda. Taking Kenyans to the ICC means the process shall be taken away from Kenyans and it shall be slow and will ultimately be too complex since it needs the sooperation of the Kenyan leaders who are likely to use it as a machinery for vendetta!!
Let them be tried in Kenya infront of all Kenyans, it shall have more of an impact in curbing impunity!!
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... written by gathara , November 17, 2008
Daktari, Is it not instructive that the threat of going to the Hague is the only reason that our politicians are actually discussing the possibility of a local tribunal? Under normal circumstances, the Waki recommendations would be gathering dust on some State House shelf! Our rulers do not fear a local tribunal which they themselves set up. They are already talking of tinkering with the make up of such a body. And if past experience is anything to go by, it is unlikely that anything they come up with would result in the kind of convictions and sentences that would qualify as justice. And even in that improbable event, Kibaki has shown himself to be extremely liberal in issuing pardons. Remember Margaret Gachara?
Secondly, even Waki concedes that for a local tribunal to have any credibility, it would need to be headed by foreigners. That in itself is a sobering indictment of our justice system and the extent to which it is in bed with the very people we would be asking it to try.
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... written by Daktari , November 17, 2008
Gathara,
I certainly agree with you that the Kenyan legal system has previously been manipulated to serve political ends. And waki may have his own reasons to prefer that the proposed tribunal is headed by foreigners. However, I believe that it is for these very reasons that Kenyans must demand for a properly consituted tribunal which is able to deliver justice.
We must face the issue head on and send a strong home grown message that Kenya shall no longer tolerate impunity and, in the process, shed off our past image. Although I note why many would see the opposite, by rushing our cases to the ICC, we would actually be weakening our judicial system further and surrender ourselves to foreign patronage.
Also, for practical reasons, a kenyan tribunal would be much better off than the ICC. It shall be recalled that at the moment, the ICC only possesses jurisdiction for genocide, war crimes and crimes against humanity. Although grave, only the latter occured in Kenya and itself requires a very high standard of proof. What about those that incited ethnic cleansing, murders, loss or property etc? The ICC certainly would not have jurisdiction unless they amounted to mere evidence of crimes against humanity.
The evidence of the crimes are in Kenya and the offenders are also in Kenya. The ICC is too far from the essentials of a comprehensice approach to the matter. It is too far from witnesses and even further from the victims that cry for justice. We need a Kenyan tribunal for crimes committed in Kenya!!
I do agree with you that pardons and linient sentences would make a mockery of justice!!
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... written by gathara , November 17, 2008
Daktari, Under ideal circumstances, I think we would all love to see them tried here. But our circumstances are far from ideal. And we do not curb impunity by subjecting suspects to a patently skewed judicial process. What recommendations would you make to ensure that any proposed tribunal actually delivers justice and is free of political manipulation?
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... written by Masaa , November 17, 2008
Daktari, I see where you are coming from. From your posts, I get a feeling that you respect that Kenya is a sovereign state and we need not be dictated upon what to do and it will still be a sign of dependence, to let the ICC have a hand in the prosecution. I am however concerned that as Gathara has said, a local tribunal may be prone to manipulation. I would like to agree with you that a local tribunal would be more efficient and perhaps the message received at home would be more profound given the proximity of the hearings and I agree this is the ideal situation. My concern also comes from the fact that there is no guarantee, that those tribal warlords responsible for the organised violence will not once again mobilise their warriors and cause intimidation as a way of undermining the process (I am very sceptical of these warlords ever since January this year). If a fair and independent tribunal can be set up locally, then it would surely be the best idea but experience has taught me that justice is something very rare in Kenya and those responsible may never face the law. On the contrary, we may end up prosecuting either the small fish or the innocent ones and let all those guilty go scott free (I shudder at the thought). Bottom line is this time round, justice ought to prevail. It must, if we are to exist as a unified country.
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The need for a Comprehensive Approach!! written by Daktari , November 19, 2008
Gathara and Masaa, It is true that any proposed tribunal may be vulnerable to political manipulation. And it is frustrating. However, I strongly believe that an independent tribunal can be constituted if a number of checks are made.Firstly, we are bound by law and the Kenyan constitution provides for the independence of the judiciary.
The members of the tribunal should be based on merit and must be objective. Of course it would be difficult for all members to be acquire the legitimacy in the eyes of the public, particularly due to the sensitive nature of the matter and the ensuing divisions. However, any disagreement would raise attention on the need to guarantee judicial independence and other pressing issues.
Broadly speaking, we must look at this matters in a comprehensive manner. One thing that is very clear is that no matter what scandal or enquiry you look at, it is clear that there needs to be an overhaul of the Kenyan legal and political systems. We need strengthened institutions. There has to be reform on land, education etc. Kenyans should take the opportunity when the matter is still fresh as failure to do so now means we shall still be talking about it in 2030.
I am very tempted to write an article on the 'real' problem, which dates back to colonial times.
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... written by gathara , November 20, 2008
Daktari, I'm not sure that, under present circumstances, an impartial and credible tribunal can be constituted absent an international dimension. While Kenyan law does provide for the judiciary's independence, in practice this guarantee has not counted for much, especially in matters where political heavyweights are concerned. Which leads me to ask: Do we first overhaul our justice system and then proceed with a tribunal? How long would that take?
Secondly, while we are here primarily concerned with the prosecution of the masterminds and financiers of the violence, I think a review of how the courts and investigative authorities have dealt with the actual perpetrators (the murderous panga-wielding, road-blocking, tear-up-the-railway common man) would be helpful. How many have been arrested and successfully prosecuted? The Commissioner of Police testifying before the Waki Commision gave the figure of 168 cases prosecuted out of over 13,000 cases investigated. If dealing with the small fry is so problematic, then what of the big fish?
Finally, it is the lack of confidence in the impartiality of judiciary that landed us in this mess in the first place. The courts' history in adjudicating electoral disputes precluded the possibility of having the matter resolved there. Thus an electoral dispute became a political and human rights disaster. Historically, the Justices have lacked the spine to stand up to the powerful. What has changed?
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Kenya would not, as a matter of law, be able to escape the jurisdiction of the ICC by instituting a sham tribunal. Indeed, if the tribunal is flawed, or hands out petty sentences, that in itself could be interpreted as its 'unwillingness' to prosecute which would then revert the whole matter to the ICC.
Having said so, I do not think that these leaders should be delt with by the ICC. Kenya is a sovereign state with a judicial system that is built on Kenyan values and traditions. The crimes were committed in Kenyan by Kenyans and therefore the tribunal ought to be Kenyan.