Saturday, July 11, 2009



Saturday, July 11 2009

He did not give us any hint that he would hand over envelope. The statement we signed with him was that we were to report to Kibaki and Raila and then get back to him on progress - Cabinet Minister, James Orengo

Debate on justice for masterminds of the post-election crisis took a new direction on Saturday with Lands minister James Orengo saying that he and Cabinet colleagues Mutula Kilonzo and Amos Wako were caught flat-footed on the handing over of the secret Waki evidence to the International Criminal Court.

Mr Orengo, who was part of the government delegation that visited the ICC headquarters at The Hague, said that the action by Chief Mediator Kofi Annan to hand over the envelope containing the list of suspects to the court had left the government team at a loss.

“He (Mr Annan) did not give any hint that he would do that. The statement we signed with him was that we were to report to the President and the Prime Minister and then get back to him on the progress of setting up a local tribunal,” said Mr Orengo in Kisumu.

But Mr Orengo said that from a human rights perspective, the move to involve the ICC in the prosecution of the suspected perpetrations of the post-poll violence was expected.

And the Sunday Nation learnt that the handing over of the names of suspected perpetrators of the post-election violence in which more than 1,300 people lost their lives to ICC prosecutor Luis Moreno Ocampo had caused disquiet in the grand coalition government as the team that went to Geneva is being blamed for doing a bad job.

Prime Minister Raila Odinga’s coalition adviser Miguna Miguna, who was on the team that went to The Hague, blamed some members of the delegation and the media for misinterpreting the agreement reached with Mr Moreno Ocampo, possibly leading to Mr Annan’s decision. Mr Miguna is a joint secretary to the Cabinet Committee on the Management of the Coalition.

“The reports attributed to some of the Geneva delegation leaders were twisted and portrayed our team as those who went for a dishonest mission. The press came up a with a far-fetched version now causing the disquiet,” he said.

He was referring reports in sections of the press that Kenya had been given a one-year extension of the deadline in which to take concrete steps to try the suspects.

“The ICC prosecutor will work according to his mandate and not what has been blown out of proportion by people serving other interests,” he said.

“We met Ocampo, and the agreement posted in the ICC website is what will be followed. They will do their work independently, but it is unfortunate that some of Geneva team leaders also misinterpreted the agreement,” Mr Miguna said.

“The two principals are leading the coalition with an open mind, but some people are undermining every detail of the spade work (done) by faithful servants of President Kibaki and Mr Odinga,” Mr Miguna added.

The two spoke out as it emerged that the government human rights agency shipped out documents containing a list of 219 people it wants investigated for their possible role in the post-election violence.

Among these are eight Cabinet ministers, 13 MPs and dozens of security officials alleged to have planned or executed the violence. Also included are a bishop and several Christian and Muslim preachers for involvement in the violence.

The report accuses the suspects of organising, funding and inciting violence in the country that left 1,333 people dead and at least 650,000 displaced. Others on the list are senior security and provincial administration officials including chiefs and their assistants.

It also includes five FM stations, businesspersons, news vendors and touts.

The report says the violence eventually affected 136 constituencies in six of Kenya’s eight provinces.

The pre-planned violence, on the other hand, was organised with the help of politicians and local leaders. Gangs of youths were recruited and underwent oathing, sometimes even donning the semblance of uniforms.

It is the same report that prompted Deputy PM Uhuru Kenyatta to move to court seeking to have his name expunged. Chief Justice Evan Gicheru on Thursday appointed two judges to hear the case.

However, Mr Kenyatta will have to wait until October 5. In his suit papers, Mr Kenyatta says he was never given an opportunity to give the commission his side of the story before the report was compiled.

But the commission said that on April 15, 2008, it wrote to all MPs, asking them to go and present their version of events, but no one showed up.

However, Mr Kenyatta argues that the said letter was addressed to the deputy prime minister and minister for Trade, not to him as an individual.

He also says the letter did not make any reference to any allegations made against him and received by the commission.

Roads minister Franklin Bett, who is also named in the KNCHR report, denies any involvement in the violence. He termed the KNCHR claims that he planned and incited people to violence as “propaganda”.

“The worst thing about NGOs is that they know how to tell lies until they are believed. I have heard about it (claims) including that I dished money at Caltex the same day that I was at KICC. Somebody has to be sincere and truthful when giving evidence,” Mr Bett said.

KNHCR is a government agency, not an NGO.

On the handing over of the envelope to the ICC, Mr Bett said: “I would want to believe there’s going to be fair investigation. Whoever is going to give evidence should do so with sincerity of heart.”

Agriculture minister William Ruto said the Waki report is “woefully deficient, untenable and arrantly mistaken. The Waki envelope, he added, “compounds the aggregation of prejudice, deceit, injustice and impunity”.

“For the architects of electoral fraud to preside over the trial of those who, outraged by the vote theft protested, is truly absurd, and amounts to a thief being allowed to punish his victim: it adds insult to injury,” he said.

Parliamentary committee on security chairman and Mt Elgon MP Fred Kapondi welcomed the handing over of the envelope to the ICC.

“We should take the bull by the horns,” he said, adding that the debate over where the suspects should be tried should be concluded as it had taken too much time.

To substantiate its “list of perpetrators”, the KNCHR report goes into some detail about political meetings leading up to the election crisis and some held when the violence had started. It argues forcefully that at least part of the violence was well- organised before the election.

However, the State-funded rights body says that it is not making any conclusions that the persons mentioned are guilty. The issues brought against the individuals remain allegations until they can be proven in a judicial system.

On Saturrday, KNCHR vice-chairman Hassan Omar said he had a discussion with ICC officials who said regardless of the handing over of secret envelope to the ICC by Chief Mediator Kofi Annan, they were still interested in formation of a special tribunal.

Mr Omar said the ICC was likely to use the wide database offered by the commission as a starting point for its investigations, adding that “we will cooperate with them when called upon”.

In a letter to the KNCHR seen by the Sunday Nation, ICC director in charge of Jurisdiction, Complementary and Cooperation Division Beatrice Le Fraper du Hellen said the organisation was in the process of analysing a number of factors including whether the alleged crimes are within the jurisdiction of the court, if they are of sufficient gravity and whether Kenyan authorities were conducting genuine investigations or prosecuting the crimes.

“My office will evaluate all the crimes in an objective manner regardless of the political or ethnic character of the alleged perpetrator,” she said. Mr Omar said KNCHR had “overwhelming” evidence against the suspects and that ICC was likely to deal with high level perpetrators and the remaining ones handled by a local tribunal.