Time Running Out as Parties Dither on Special Tribunal in Kenya
blurb:isstoday:17112008kenya
17 November 2008: Time Running Out as Parties Dither on Special Tribunal in Kenya
Three weeks since the release of the report of the Waki commission that recommended prosecution for those responsible for post-election violence, progress towards the establishment of a Special Tribunal in Kenya has bumped up against political constraints. It now seems unlikely that the Tribunal’s chances of success are going to improve.
In recent weeks it has emerged that the main parties in Kenya – President Kibaki’s Party of National Unity (PNU) and the Prime Minister’s Orange Democratic Movement (ODM) – are divided on their support for the Waki Report. Camps in both parties for and against prosecuting have now been identified with individuals. However, those initially in favour of full implementation of the Report (prosecutions to end impunity for the most serious crimes) such as the Prime Minister Raila Odinga and Justice Minister Martha Karua were heavily outnumbered by the ‘no’ voices among MPs. Mr Odinga was soon forced to tow the party line when the ODM Parliamentary Group resolved to reject the report. Although the PNU does not seem to have adopted a uniform stand, the majority in PNU (whose collective views are reflected in regional caucuses) – like in ODM – have poured cold water on the report, labelling it ‘shoddy’, ‘inadequate’ and ‘divisive’.
Despite protestations from the general public, sections of civil society and victims over the political bickering on how to move the process forward, the Waki Report could have been declared dead by 5 November when voices emerged from both sides of government calling for a fresh probe. Others suggested that prosecuting those named in the sealed list – rumoured to be senior members from both PNU and ODM, as well as high profile business people – would be a recipe for chaos and that the soon to be created Truth Justice and Reconciliation Commission (TJRC) should deal with the matter. While all this was happening, there were consistent voices from sections of the international community, including former UN secretary general Kofi Annan, suggesting that failure to act would cause the International Criminal Court (ICC) to take the matter over. This is in line with the Waki Report, which recommends that the ICC step in if the Special Tribunal fails to take off or is subverted midway.
The debate regarding the Special Tribunal was dramatically revived on 11 November when it emerged that the Prosecutor of the ICC has contacted the Kenya National Human Rights Commission to obtain evidence it had gathered earlier in the year on crimes committed. Members from both PNU and ODM now argue that they will look further into the possibility of establishing the Special Court. Some have suggested that it would be easier to ‘manage’ a domestic process rather than cede the case to the ICC.
Although the ODM immediately appointed a committee after the ICC ‘revelation’ to reconsider the Special Tribunal, statements about ‘managing’ the process betray a lack of genuineness among politicians and raises the prospects of sham trials even if the tribunal is created. Cabinet was said to be meeting to take a stand on the matter after the ICC signalled that it was watching developments on the issue closely.
It is clear that Kenya remains politically divided on how to deal with perpetrators of the post-election violence that rocked the country in December 2007. It is reported that certain communities have vowed that they will not allow any of their ‘sons’ to face prosecution, at home or abroad. Whatever position the cabinet takes, it is important that mechanisms are supported that promote peace, but at the same time ensure that perpetrators of the most serious crimes do not enjoy impunity. The domestic justice route would probably be easier for most to support, although the role of the ICC remains important, especially if domestic politics starts to trump justice and drown the voices of the thousands of victims. Much of this depends on how successfully the delicate terrain of the Government of National Unity can be navigated. This matter is clearly far from over.
Godfrey M Musila, Senior Researcher, International Crime in Africa Programme, ISS Tshwane (Pretoria)
