Africa, Civil Society, Gender, Headlines, Human Rights

RIGHTS-KENYA: Justice Waits While Debate Rages Over Tribunal

Joyce Mulama

NAIROBI, Jul 27 2009 (IPS) - Kenya’s cabinet is expected to meet Monday to review a bill establishing how the masterminds of the country’s post-election violence will be punished.

Presidential immunity against prosecution, should Mwai Kibaki be implicated in the violence, is one of the most controversial highlights of a bill that has seen previous cabinet discussions on the matter end in a stalemate. Under the Kenyan constitution the president is immune from prosecution while in office: the bill seeks to strip away this immunity.

Debate is raging over how to handle investigation and prosecution of those accused of plotting the violence which occurred early last year following election results after 2007 polls that were strongly contested by President Kibaki and opposition leader Raila Odinga. Many want perpetrators to be tried by the International Criminal Court (ICC) instead of a local tribunal.

Survivors doubt govt

Violet Asiko (not her real name) was raped by two policemen she claims were members of the General Service Unit (GSU), a paramilitary wing of the Kenyan military. "I lost one of my four sons in the process of fleeing for safety. When I found him and as we were walking to a displaced person's camp, we met four policemen who started harassing me. Two of them raped me as the rest watched, in full view of my eight-year-old son," Asiko, who lost her husband in the violence told IPS.

Asiko, who is now HIV positive and is undergoing counselling, is concerned about getting justice. "If we leave our own leaders to give us justice, it will never come because they have the power to influence the systems here. Let the matter be handled by the ICC which is not easy to manipulate," she said.

A year and more after a National Accord established it, the coalition government remains deeply divided over how to punish planners and financiers of the violence that led to the death of 1,300 people and saw over 300,000 displaced. According to the Federation of Women Lawyers in Kenya (FIDA Kenya) more than 3,000 rapes were committed during the violence.

President Kibaki and Prime Minister Raila Odinga have both spoken in support of local investigations and prosecutions, but many members of parliament are against the idea arguing that a local trial could be manipulated by the political class, and therefore their preference is for perpetrators to be tried at the ICC.

A commission of inquiry into the violence last year recommended the establishment of a local tribunal by February 2009 to prosecute those responsible for the atrocities. Government’s failure to do so saw Kofi Annan, who mediated the National Accord, forward an envelope containing suspects’ names to the International Criminal Court (ICC) this month.

ICC prosecutor Luis Moreno Ocampo, who said contents of the envelope would remain confidential, has stated that only the setting up of a special tribunal that meets international credible standards and is free from political manipulation would stop him from taking over the matter. The ICC has given Kenya until the end of August to provide a roadmap of how this will be done.

“This will be the final test as to whether Kenya is really going to act on impunity or not. Violence in this country has become like a tool of trade. And those who perpetuate this violence are never held to account, it has become clear that the culture of impunity in Kenya is so prevalent that you can almost literally touch it,” Ndung’u Wainaina, executive director of the International Centre for Policy and Conflict (ICPC) said.

Political will only the start

Despite clamour for justice via Kenya's legal system, the effectiveness of the country's judicial system remains challenged by under-staffing and a lack of resources. According to the latest data from the Ministry of Planning, there is a backlog of over 800,000 cases.

According to the Independent Medico-Legal Unit, an organisation that documents torture in prisons, there are over 60,000 inmates in Kenya's 92 prisons, 14,000 of whom are awaiting trial.

Partners for Change, a movement that advocates for reforms using non-violent means, say, "the Kenyan judicial system cannot, without massive injection of resources and restructuring which could take years, try the post election violence cases that all Kenyans wish for."

But Mutula Kilonzo, the justice minister is making a spirited case for a local tribunal, saying such will provide an opportunity to facilitate the rehabilitation of the judicial system in various forms including increasing personnel and resources.

Analysts say that the top leaders swimming against the tide of sentiment among even their own members of parliament who prefer the ICC option may be driven by the fear that an ICC trial might end up holding key government officials – including the president and the prime minister – to account.

Some parliamentarians have asserted that even the top leaders need to be called to account for their role in the violence, a position held by the civil society. “Ultimately they are the ones who signed the national accord which stipulated dealing with perpetrators of violence. If they do not show the way forward, then they must be held accountable for the violence,” Cyprian Nyamwamu, head of the National Convention Executive Council, an umbrella body of reform organisations said.

Civil society argues that a local tribunal and the ICC are not mutually exclusive; they could complement each other.

“We still emphasise that the Kenya government must work hard to ensure that we have an effective local tribunal. It will serve justice, it will be more effective, it will have the widest reach and more importantly, it will deliver justice in a faster way than the ICC can be able to do,” Wainaina told IPS. The ICC would still continue with its own investigations, monitor the local process ensuring it does not behave in manner likely to subvert justice, Moreno Ocampo warned.

The International Criminal Court is seen as having some serious limitations in terms of the number of people it can prosecute and its ability to quickly gather evidence. The argument is, the ICC can target the big people who financed atrocities, but not the small people who carried them out.

“We want prosecution of people who were most responsible; we want the masterminds targeted as well as their surrogates, ensuring the lower cadres are equally punished.  We do not want a situation where you prosecute only the top while you leave a glaring impunity gap at bottom; you are not going to solve that problem, and that is why (Asiko’s – see box) case becomes very critical. The police must be tried as well,” stated Wainaina.

Nyamwamu shares the same position. “A local tribunal is the way to go and should be able to try all those cases; financiers and those who actually carried out the atrocities. It should be able to meet international standards and deliver justice to all.”

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