Kenya: The Hague or Local Tribunal?
More than a half of Kenyans want suspected perpetrators of post election violence tried at the International Criminal Court (ICC) at The Hague, according to a recent survey.
The report by consultants hired by the African Union Panel of Eminent Personalities shows 53 percent of respondents support the ICC route as opposed to 33 percent who vouch for a local tribunal. According to South Consulting, most of those interviewed believe the local Tribunal would be corrupted and trust they will only find fair judgment at The Hague.
These fears arise from the perceived weaknesses in the judicial system and the fact that successive Kenyan governments have lacked political will to prosecute influential persons for serious offenses, including political violence.
“This politicization of the process to establish a Special Tribunal may lead to people losing confidence in the Tribunal. For the Tribunal to work, therefore, it will require that it is independent and that this independence is guaranteed through a legal framework. Credibility, objectivity and impartiality should be the main principles and values guiding its operations,” the report states in part.
South Consulting says politicians who fear that they were named in a secret list by the Commission of Inquiry into Post Election Violence were politicizing the debate and poisoning Kenyans for their personal benefits.
Most Kenyans may not much about the ICC. Being a country where the political class sets the agenda for national debate (or bickering as it has often been referred to), citizens often take uninformed positions. Hence the call to go to The Hague or the proposal to have a local tribunal may be quite uninformed. This is indeed convenient for the politicians as it works for their benefit.
The International Criminal Court is a permanent international court was formed in July 2002 to prosecute individuals for genocide, crimes against humanity, war crimes and crimes of aggression. It was formed on the day its founding treaty, the Rome Statute of the International Criminal Court came into force. Over 108 countries have since become signatories although about 39 despite signing, have not ratified the Rome Statute.
Some countries among them China, India, Russia and United States have not joined. In fact, USA under the Bush administration was very critical of the court.
The ICC was established to essentially exercise its jurisdiction in cases where the accused is a national of a state party, the alleged crime took place on the
territory of a state party, or a situation is referred to the court by the United Nations Security Council.
According to the principle of complementarity, the primary role to deal with such cases is left to individual states. ICC comes in only when the judicial system of a member country has failed or is incapable of carrying out investigations and prosecutions in a satisfactory manner.
Why many reject the local tribunal option
A local tribunal, given the failure by the government to implement several reports of commissions of inquiry, the Akiwumi report on previous election related violence included, has made Kenyans wary of the leaders’ willingness and ability to bring to justice those who have participated in these crimes. Such a process is likely to be manipulated by politicians who have been implicated.
After the violence which hit the country after the 2007 disputed general elections, a process led by the National Dialogue committee otherwise called the Serena Team was set-up.
The committee led by former United Nations Secretary general Dr. Koffi Annan had the immediate mandate of stopping the violence which by then had taken 1,500 casualties and 300,000 people had been displaced. It was also to ensure the return and reintegration of the displaced people back in their homes.
The signing of The National Accord which provided for equal power sharing between president Mwai Kibaki’s PNU and Prime Minister Raila Odinga’s ODM helped to restore calm, though this did not necessarily mean peace.
The long term mandate of the Committee was to address the historical injustices which collectively contributed to fueling of the violence across the country. It emerged that the dispute about the presidential election results was just one of the issues. The violence it was claimed was a demonstration against historical injustices such as inequality, land grabbing, previous tribal clashes and general abuse of human rights and power.
These injustices were to be addressed through what has become popularly known as Agenda 4 which, recommended the formation of the Truth, Justice and Reconciliation Commission, completion of the stalled constitution review process, reforming the Electoral Commission of Kenya and prosecuting planners and perpetrators of post election violence.
Politicians and Kenyans at large were divided on whether to go to The Hague or establish a local tribunal. Some politicians suspecting that their names are in the dreaded Waki list are confused whether they stand to benefit from ICC or a local process. It is also felt that, equally politicians who imagine that they stand to benefit when their opponents fall to the ICC or the local tribunal are also unsure whether the ICC or the local tribunal is the appropriate place to nail them.
When the CIPEV report was presented to the president and prime minister, those who suspect that their names are in the report dismissed it as a litany of lies and bitterly opposed the ICC proposal, claiming that it would be an infringement on Kenya’s sovereignty.
They argued that setting up a local tribunal will be an opportunity to develop Kenya’s administration of justice agenda. Politically, this class of politicians believes it would be easier to manipulate a local process, turn it into a political witch hunt tool and mobilize their ethnic communities to intimidate the prosecution process.
Kenya has hardly ever implemented the work of numerous Commissions of Inquiries reports, many of which are never released to the public. A Constitution Amendment Bill which was supposed to establish a law creating the local tribunal was defeated in parliament in the presence of both the president and the Prime Minister. A day after the defeat of the Constitution Amendment Bill, Dr. Annan in a press statement regretted this new development and threatened to hand over his list to the Hague. A few days later and after the Prime Minister revealed that he had held discussions with Annan, the former UN Secretary General announced that he had given the government two more months to unlock the dead lock before he presents his list to the Hague. Koffi Annan finally took a decisive step and handed over the secret to ICC prosecutor at The Hague a move which now opens the door for the international court to start investigations into the post election violence.
Dr. Annan had handed over the secret list to the ICC chief prosecutor Luis Moreno-O’Campo shortly after the government delegation to The Hague led by Justice Minister Mutula Kilonzo and the Attorney General Amos Wako announced that the country had 12 more months to set a local tribunal or else the ICC takes over the case.
Other developments have since followed this action. Those who originally opposed the Hague option led by Agriculture Minister William Ruto supported the ICC soon after and have also asked that the names of the suspected perpetrators be released to the public.
It may be that some politicians have realized that the Hague option is better since it is a thorough but slow process. They also may have some reprieve in that the local tribunal law has not passed through parliament and they may just succeed in getting the ‘club’ to pass the bill after inserting amendments that will suit them. This could give the alleged perpetrators a lifeline to survive once and for all.
Many political pundits say the country has failed to bring the offenders to account and although the for example police made some arrests in early 2008 no one has been jailed for the deaths of 1500 people and the destruction of property running into billions of shillings which has left hundreds of thousand destitute .
“Further delays will have the effect of reducing people’s confidence in the process, particularly if the victims continue to see inaction on the part of the government. Significant, of course, is that the suspects will develop a sense of impunity and feeling of victory against the State for their violent behavior,” the report concludes.
Parliament in February rejected the tribunal signaling their resolve to have the suspects tried at the ICC. The government is in a rush to start a second bid amidst threats by the ICC Chief prosecutor to move in and take over the case.
The Consultants regret that although the country has established structures for the much needed reforms, the momentum of the reforms has been lost. The team has warned that without undertaking fundamental reforms, another violent civil conflict could recur.
“Reforms that tend to appease the political leaders will not address the root causes of the country’s problems. The survey findings show that ordinary citizens prefer not only institutional reforms but also those that will improve their well-being. For this reason, it is important that reforms focus on a constitution that is desirable to the majority of the people,” the team advised.
The Consulting firm further warns that disagreement over distribution of power and patronage is likely to spill over into the constitutional review process and frustrate delivery of a new constitution. The team also has reservations over the disbandment of illegal armed groups who they say are growing in number owing to internal factionalism and general mutation.
The constitution amendment bill intended to create a local tribunal required two thirds majority to pass and it failed. The Kenyan parliament made its position clear: send perpetrators of the 2007 post-election violence to the International Criminal Court in The Hague. The failure by the two principles in the Grand Coalition government to marshal the vote is an indicator of the underlying mood of the public.
It could also be a pointer of their losing control of parliament.
One could only guess the MPs’ motivation in this action. University of Nairobi lecturer and political analyst Dr. Solomon Owuoche says chatter among Kenyans suggests many reasons. “There are some who hope that The Hague process, given how lengthy it can be, could allow those accused to “escape” the wheels of justice. Others want it for the exact opposite reason: they have no confidence that the local institutions can guarantee justice and hence prefer that this justice is dispensed elsewhere; in this case, The Hague.”
In the end, it boils to the lack of confidence in local institutions to realize the much needed justice to tame impunity. “This is not an accidental view as confidence in local institutions has been eroding over time as our history demonstrates,” he adds.
The country, says Dr. Owuoche, has seen tribunals, select committees and commissions of inquiry in action, conducting elaborate hearings, and composing meticulous reports complete with reasonable recommendations for action. In almost all cases, recommendations haven’t seen the light of day.
Says Dr. Owuoche: “Perhaps the greatest demonstration of lack of confidence in national institutions especially the judiciary happened following the debacle of the last presidential elections. “The aggrieved party, ODM, refused to go to court claiming that the system was stacked by President Kibaki’s cronies. This action possibly worsened the degree of clashes that followed the debacle.”
It is ironic that many including the Prime Minister who expressed lack of confidence in the Kenyan Judiciary now favor a local tribunal over The Hague.
“The Hague issue may never have arisen had the previous governments addressed issues in a timely manner. For example, it is possible that post-election clashes of 2008 could have been averted had the government implemented both the Akiwumi and Ndungu reports. It is also possible that had the government record been good with respect to previous recommendations, MPs would have voted for creation of a local tribunal,” says the political pundit.
However MPs voting against the establishment of a local tribunal is also self indictment on their part. They are saying, in not so many words, that their leadership is inadequate in delivering justice to Kenyans.
Hidden weapon in local tribunal
With the secret list of the alleged perpetrators of the post election violence now with the ICC chief prosecutor Luis Moreno Ocampo, the clock is tickling for President Kibaki and Prime Minister Raila Odinga to convince Parliamentarians on the need to set-up a local tribunal, failure to which, the ICC takes over the case.
The two principles’ woes are not over just yet as majority of MPs prefer The Hague to the local tribunal and have promised to continue shooting down the Bill when it is brought to the floor of the House. On his part, Ocampo has clearly stated that the ICC will go for the “big fish” and not the footmen-this is complying with the ICC statutes. And this may be what is giving Kibaki and Raila sleepless nights.
The Cabinet has since endorsed the Truth Justice and Reconciliation Commission and it has been revealed that revelation that section 77(4) of laws of Kenya was amended and secretly passed early this year to state that only cases that took place after the section came into effect (in January) will be followed in move that seems to protect suspects
The government may however, need the goodwill and cooperation of the Panel of Eminent Personalities to change the proposed law, the first impression of which, going by the recent developments, is far fetched.
“The government team can go to Geneva to lobby for more time but we are proceeding to the Netherlands without reference to anybody because the hour of reckoning has come,” said NCCK general secretary, Peter Karanja in an interview. According to him, those who hide behind “hollow reconciliation” must be brought to book.
All in all Kenyans and the international community should not lose sight of the matter at hand. Election violence has visited Kenyans during every election since 1991 bringing with it death and destruction to thousands of people for having expressed their democratic right by voting for a candidate of their choice. Kenyans have buried many people; others were and are still languishing in IDP camps, while still others have gone to add to the statistics of poverty and neglect.
Both the international community and local leaders have this opportunity to give these people justice and by their action make a statement once and for all that there is no room for violence in a democratic system.
Kenya faces a bleak future if decisive action is not taken and both the international community and Kenya’s leaders will stand indicted if they fail these people.