KENYA CABINET IN THE EYE OF A STORM

SUNDAY NATION
Saturday, August 1 2009

The International Criminal Court (ICC) will be keenly watching how Kenya deals with post-election violence suspects in the wake of the recent Cabinet decision to try them in local courts.

In a guarded response to inquiries by the Sunday Nation, ICC Prosecutor Luis Moreno-Ocampo said on Saturday he would wait until the end of the September when the Kenyan Government is expected to meet him again to give an update on the process.

“The Prosecutor will be closely monitoring the judicial mechanisms that will be utilised to conduct national investigations and prosecutions of those most responsible for the post-election violence,” Mr Moreno-Ocampo said.

“The Prosecutor respects Kenyan authorities’ efforts to end impunity”. Mr Ocampo noted that in accordance with the Rome Statute, the primary responsibility for investigating and prosecuting those most responsible for the crimes committed during the post-election violence rested with Kenya.

But former Justice minister Martha Karua fired a withering broadside at the government, accusing her former Cabinet colleagues of insincerity. Ms Karua said President Kibaki and Prime Minister Odinga were not worth the mandate given them by Kenyans.

“It shows a lack of integrity on the part of the two principals and the entire Cabinet. They have failed. In Geneva, they said through the minister of Justice that they are committed to ending impunity.

Now they are telling us that they cannot keep their word. They have shown no commitment to the voices of the people and victims. The two principals are not worth their mandate to lead Kenyans,” she said.

Ms Karua spoke as Mr Odinga, Vice President Kalonzo Musyoka and three ministers defended the Cabinet position on an enhanced role for the Truth, Justice and Reconciliation Commission in dealing with issues arising from the post-election violence.

Critics have described the position taken by the Cabinet last Thursday as dishonest and befuddled, saying it showed the government’s unwillingness or inability to end impunity.

But Mr Odinga said the government will reform the police force, the Judiciary and the Attorney-General’s office to enable them deal effectively with cases of post-election violence.

“We will reform the police force because people don’t want the police to prosecute themselves. We also realised that the Judiciary is riddled with corruption.

We want to empower the office of the AG so that it can handle all the prosecutions,” Mr Odinga said. “ICC can still come in if it feels some people need to be prosecuted at The Hague. But as of now the government wants to amend laws so that we can prosecute our own. The government will not accept to take its people to The Hague.”
On Saturday, Mr Moreno-Ocampo said the ICC welcomed the government’s efforts to deal with the matter. “On July 3, in The Hague and again yesterday Kenya committed itself to full cooperation with the ICC, and we welcome this commitment. The Prosecutor will respect Kenyan authorities’ efforts to end impunity and to bring to justice those most responsible for the post-election violence,” Mr Moreno-Ocampo said.

He added that his office was still carrying out preliminary examination of the Kenyan situation but “no decision has been made whether the ICC has to open an investigation”.

Mr Musyoka and ministers Kiraitu Murungi and Prof Sam Ongeri said in separate statements that the Cabinet had resolved to reconcile and heal the country from the effects of last year’s violence through the TJRC.

They spoke amid mounting criticism of the decision to drop the option of trying suspects at a special tribunal. In Mombasa, Muslims for Human Rights (Muhuri) asked the ICC prosecutor to publicise the names of people in the Waki envelope and prosecute those behind the post-election violence.

Muhuri executive director Hussein Khalid said the Cabinet had failed Kenyans and only the international community could guarantee justice for the victims.

“Our Cabinet has lost direction, and our hope lies only with Ocampo who should arrest those mentioned in the Waki envelope,” he said. “We are shocked and disappointed that our government can stab us in the back over the atrocities that befell us last year.”.

Gachoka MP Mutava Musyimi accused the Cabinet of pursuing political survival instead of punishing those who committed atrocities.

“I have discovered that this country is run by a ruthless power elite. It doesn’t care about democracy or the rule of law. It pays lip service to both. That is the Kenyan condition since 1963. The Cabinet gave us that. It’s about political survival,” said the former general secretary of the National Council of Churches of Kenya (NCCK).

“Now that the possibility of a local tribunal that meets international standards is very unlikely, The Hague will follow as a matter of course. It would have been better if we had done it ourselves,” he further lamented.

Speaking at a fundraiser for musicians from Ukambani in Nairobi, Mutito MP Kiema Kilonzo accused the government of failing to help fight impunity in the country and that it was now up to Kenyans to do it.

“The TJRC has no teeth and cannot try the suspects, and therefore the Cabinet has failed to show leadership. The only options we have as a country now are Hague, Hague and Hague,” Mr Kilonzo said.

Assistant minister Kabando wa Kabando accused the Cabinet of shortchanging Parliament by not giving MPs an opportunity to debate “a fundamental issue that can make or break this nation.’’

Former Kabete MP Paul Muite described the Cabinet decision as a time-buying gimmick meant to dupe Kenyans and ICC that it was interested in punishing impunity and Mr Moreno-Ocampo to open investigations immediately.

“Clearly the government is only comfortable with a process in which they are in absolute control. They are only extending the culture of impunity where perpetrators will not get punished and where victims will not get justice.”

But in a spirited defence of the Cabinet decision, the Vice-President argued that the government was serious in its resolve to punish post-election violence suspects and heal the nation at the same time.

Speaking in Kitale, Mr Musyoka said: “We have resolved to say no to impunity and yes to healing so that this country can be united.” Kenyans, he said, were well-placed to deal with problems facing them instead of relying on outsiders to do so.

“I want to assure Kenyans that the government has declared war on negative ethnicity and that it will not allow tribal wars witnessed after the last General Election to happen again,” he said.

Saboti MP Eugene Wamalwa also supported the formation of the TJRC, saying it was the only way to unite Kenyans divided by tribal and political affiliation. For their part, ministers Ongeri and Murungi pleaded with Kenyans to embrace the decision by the Cabinet on the TJRC saying it was in the best interest of the country.

“Even in countries where the ICC had taken up similar cases, like Sudan, Congo and Liberia, there were a lot of problems, and this will not be in the best interests of our country,” said Mr Murungi, the minister for energy.

Prof Ongeri (Education) said subjecting suspects to a trial at home or at The Hague would not adequately deal with the causes of the violence and would entrench animosity.

“In a court of law, there is a loser and a winner, and the two will never come together. In TJRC, people will open hearts, confess and then forgive one another,” he said. The two ministers were speaking Friday at Kanyakine High School in Imenti South duringthe district’s prize giving-cum-education day.

Reported by Peter Leftie, Charles Wanyoro, Mwakera Mwajefa and Oliver Mathenge