Sunday, August 2, 2009



Friday, July 31 2009

The statement read by Kenya's President Kibaki after the marathon cabinet meeting on Thursday was a masterpiece in obfuscation. It said plenty, but artfully avoided putting in black and white the real outcome of the meeting.

The real outcome was that forces in the government opposed to trial and punishment for those who masterminded and financed the post-election bloodbath had won the day.

The cabinet opted to throw out of the window proposals tabled by Justice minister Mutula Kilonzo for a special local tribunal meeting international standards for trials on genocide, mass murder, crimes against humanity and other serious violations.

The cabinet also chose to trash the agreement reached with International Criminal Court prosecutor Luis Moreno Ocampo and with former UN secretary-general Kofi Annan for establishment of a an acceptable local mechanism for investigation and trial of key suspects.

Those were the conditions under which Ocampo would hold his fire on the prerogative to pursue principal players in the bloodshed; from those named in the now famous Waki envelope of the Commission of Inquiry into Post-Election Violence, to those ICC investigators might have independently identified.

President Kibaki and Prime Minister Raila Odinga, the principal foes in the elections and the bloody aftermath, were ironically united in the cabinet pushing for the Justice ministers’ proposals.

They were up against a fierce resistance led, another irony, by some of their respective key luietenants during the electioneering and aftermath, Deputy Prime minister Uhuru Kenyatta and Agriculture minister William Ruto.

During the period of the post-election violence, Mr Kenyatta and Mr Ruto—allied in Kanu at the 2002 elections until going their separate ways five years later—were seen as the key figures on opposite sides; one leading the violent reaction to the disputed declaration of President Kibaki’s re-election and the other at the helm of a counter-attack in what virtually became an ethnic war.

That the two then teamed up to oppose in the Cabinet and elsewhere trial and punishment for suspects in the post-election violence is tinged with its own ironies, and maybe also self-interest considering the apprehension about who exactly is in Judge Philip Waki’s secret list, now in the custody of Mr Ocampo.

Whatever the motives, the camp in the Cabinet against treating the post-election aftermath as a crime and punishment issue, pushing instead for reconciliation and forgiveness, won the day.

The cabinet then had to grapple with crafting a statement that would try to convey the impression that it was not abandoning the search for justice or surrendering the war against impunity, but simply pursuing an alternative route to the same goal.

The problem is that the government statement was extremely unclear on the path chosen and therefore unlikely to persuade Mr Ocampo, Mr Annan or anybody that there was indeed the will and determination to arrest and punish those behind the violence.
The upshot of it all is that Mr Ocampo might determine there is no need to waste further time waiting for the government to act, and therefore it is time to get the ICC process in motion.

A close reading of the government statement presents a befuddling array of very vague proposals, none of which present a clear road map.

The government said it considered various options, including the Special Tribunal Bills presented by Mr Kilonzo. It also discussed alternative methods such as directly referring the post-election violence matter to the ICC for action; or doing the opposite of that and withdrawing recognition of the ICC as well as repealing the local International Crimes Act.

Other alternatives on the table were prosecuting the suspects in the High Court, as presently established, using the International Crimes Act; or establishing a Special Division of the High Court to tackle the cases.

All the options were considered and discarded, and finally came the decision that while the government “will not stand for impunity in the pursuit of justice”, an acknowledgement that the decision will indeed be seen to condone impunity. “the country should equally pursue national healing and reconciliation.

This does not in any way reduce its desire to punish impunity.” That the issue of punishing impunity was mentioned twice in one brief sentence indicates an anticipation of the reaction.

The statement went on with a resolution to the effect that the government reaffirms its commitment to rule of law, and in particular to the ICC and will cooperate and fulfil its obligations to the Court.

It did not, however, state categorically that it would arrest and turn over suspects that may be indicted.
The government then promised to:

* Institute major reforms in the judiciary, police, and investigative arms to enable them investigate, prosecute and try perpetrators of post-election violence locally;

* Deal with other forms of impunity including extra-judicial killings, corruption and land grabbing;

* Seek amendments that will make the Truth Justice and Reconciliation Commission more representative and effective.

The statement concluded: “Cabinet is confident that with proper healing and reconciliation, Kenya will not face the events of last year's post-election violence”.
In sum, the statement hinted at a handful of actions, but promised on none.

No one now can be sure whether the post-election violence suspects will be adjudged before the TJRC, through criminal trial under a reformed and more effective justice, law and order system or whether it sill simply be a mater of letting bygones and bygones and hoping for the best.

The only conclusion one can draw is that the Cabinet decided to do nothing.