10 Jul 2009: ISS Today: Hope of Ending Impunity in Kenya Rises as Panic Sets in Amongst Perpetrators

10 July: Hope of ending impunity in Kenya rises as Panic Sets in Amongst Perpetrators

 

Alfred Muteru, intern – MIFUGO Programme, ISS Nairobi Office

 

A sealed envelope with names and material bearing evidence of key perpetrators of Kenya’s disputed presidential election that sparked violence throughout the country was handed over to the Prosecutor of International Criminal Court (ICC), Luis Moreno Ocampo on 9 July 2009.  The handing over of the secret envelope by Kofi Annan, the chief mediator for the post-election violence of 2007 to early 2008, has provoked excitement amongst the public, but it seems panic has gripped the political leadership of the country.

 

 

The sealed envelope and supporting material were as a result of a process of the Waki Commission established with the mandate to inquire into Kenya’s post election violence following disputed presidential elections. The elections saw the Orange Democratic Movement (ODM) and the Party of National Unity (PNU) competing for power. The mandate of the Commission of Inquiry into Post-Election Violence (CIPEV) was to investigate the facts and circumstances surrounding the violence, the conduct of state security agencies in their handling of it, and to make recommendations concerning these and other matters.

 

The former UN Secretary General, Kofi Annan mediated the Kenya post-election conflict with a Panel of Eminent African Personalities: Mr. Benjamin Mkapa of Tanzania and Graca Machel of South Africa. According to media reports in Kenya’s Daily Nation of 10th July, Kofi Annan summoned the two members of the panel and they decided to hand-over the list of suspects to the ICC. 

 

While the Waki Report has five sections, it is part five that seems to have drawn publicity and interest. Part V contains recommendations made with a view to the prevention of future reoccurrence of large scale violence; the investigation of alleged perpetrators; and how to tackle the culture of impunity that has become the hallmark of violence and other crimes in the country.

 

To break the cycle of impunity which is widely believed to be at the heart of the post-election violence, the report recommended the creation of a special tribunal with the mandate to prosecute crimes committed as a result of post-election violence. The tribunal would have an international component in the form of the presence of non-Kenyans on the senior investigations and prosecution staff. Since 2008, the government has failed to demonstrate sufficient and convincing political will to punish and prosecute those responsible for crimes against the people of Kenya.

 

Several factors could have contributed to the delay in setting up a local tribunal; one is suspicion that in the secret envelope, there are names of at least six Ministers, five Members of Parliament and two top civil servants. The Grand Coalition Government could therefore be facing a huge challenge of prosecuting perpetrators who are in the current government. Secondly, both sides of the Coalition Government are seen to be guilty of either perpetrating the violence or doing little to stop and protect the citizenry and their property without fear or favour.

 

Faced with the dilemma of setting up a local tribunal or handing over the names of the perpetrators to The Hague, the country seems to have gone into a mood of excitement among the public while the political elite and their supporters seem to have panicked on the sudden move by Kofi Annan to hand over the secret envelop to the ICC. For the public, the excitement is over the possibility of putting to an end the continued impunity that the political elite perpetually enjoy at the expense of the taxpayers. The general public will be waiting with bated breadth to see how well the country will seaze the opportunity to prosecute suspects in the current leadership and put to an end the culture of impunity and protectionism. Panic by the political leadership could largely be understood in respect to consequences they will face as individuals and their families and as well as loss of political clout.

 

Considering the fact that Moreno-Ocampo has given Kenya yet another deadline of 30th September to take the necessary legal and political action in establishing a local tribunal to try post-election suspects, the likely political scenario is that the office of the Justice Minister will have to move fast to establish the local judicial process. Also, the office has to conduct investigations and collaborate with ICC as much as possible to beat the September deadline.

 

In the meantime, the political leadership will have no choice other than begin to prepare for prosecution and assure their supporters not to engage in new violence, as this might only make the situation worse than it is at the moment. On the side of the government, it has to face the embarrassing situation of having to sack members of the cabinet and other leaders who will be summoned to The Hague. 

 

The new developments of handing over the secret envelop to the ICC will also have a direct bearing on the political scenario in the current government and in the future, particularly in the run-up to the next General Election in 2012. New Political Alliances are likely to be drawn depending on which individuals of the political-divide are likely to be prosecuted.

 

At the national level, efforts are underway to form the Truth, Justice and Reconciliation Commission.  The Civil Society and development partners have also been involved in peace initiatives geared towards restoration of peace, healing and national cohesion. Efforts are concentrated in the main epicenters of violence that is in the North Rift regions. However these initiatives seem to be hitting a snag due to political interference and impunity.

 

Currently ODM enjoys the majority vote in Parliament and is able impose its policies and barter support for concessions from the other groups within the coalition which PNU members term as political blackmail. On the other hand PNU is holding key sectors whose mandate is anchored in the Constitution. The coalition is held together by the National Accord whom the latter accuse of not respecting.

 

Analysts are casting doubt on whether the initiatives are well thought of and whether the coalition will be able to steer peace and reconciliation process and implement key reforms while addressing impunity.  Divisions have emerged among politicians in the coalition, civil society and development partners on who will steer the process.

 

Sharp differences in the Grand Coalition Government has direct impact on implementation of key institutional and constitutional reforms, raising doubt on the ability of the coalition to steer the country out of the political quagmire which has long been a deterrent to economic development and a recipe for politically instigated violence. This irreversible scenario calls for political sacrifice and compromise for the greater national interest.

 

The fight against corruption is pertinent to improving governance and ending impunity which is a prerequisite for the achievement of a state’s political, economic and social objectives. Eradication of poverty, regional imbalance, having equitable development and dealing with unemployment among the youth is paramount for sustainable peace in Kenya as spelt out on Kenya National Dialogue Reconciliation long term solutions. The Coalition which ought to oversee this is currently caught up in a myriad of multi-billion corruption scandals where it is yet to recover from the political crisis and the repercussions of the violence which had a big toll on the economy.

 

The Waki Report must be implemented along with numerous recommendations made in Commissions of Inquiry such as the Ndungu Report on the National Land Policy and the Akiwumi Report on past injustices for sustainable peace.  The implementation will address not only impunity but destroy a political platform used for mileage while propelling economic recovery for equitable distribution. 

 

At the international level, sharp differences have emerged with several African leaders accusing the developed countries of asserting their authority through the court. In response, Kofi Annan urged African leaders to steer away from condemning the ICC and instead focus efforts on fighting impunity.

 

Indeed, Kenya might be a good example if the opportunity is seazed to eradicate impunity in the African continent which has continued to drain huge amounts of public funds through corruption, misappropriation and embezzlement.


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