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KENYA: Govt Fails to Keep Word on Tribunals

Danielle Kurtzleben

WASHINGTON, Aug 3 2009 (IPS) - The Kenyan government has reneged on its commitments to call on independent, international tribunals to try perpetrators of 2007 post-election violence. This move is being criticised by Human Rights Watch (HRW), a New York City-based organisation that advocates against human rights abuses.

In an announcement on Jul. 30, the Kenyan cabinet said that it would not establish a special tribunal to try individuals responsible for ethnically charged violence after the disputed Dec. 2007 presidential election there. The violence left over 1,000 Kenyans dead and displaced as many as 350,000.

“With proper healing and reconciliation, Kenya will not face the events of last year’s post-election violence,” said a statement from the Kenyan cabinet, which also promised local judicial reforms in advance of the trials.

The 2007 presidential election pitted incumbent Mwai Kibaki, a member of the Kikuyu ethnic group, against Raila Odinga, a member of the Luo. The Kikuyu is the largest ethnic group in the country, making up about 22 percent of the Kenyan population; the Luo comprises about 13 percent.

Though initial results showed Odinga to be the likely victor, Kibaki was declared the winner by 200,000 votes – around two percent of the nearly 10 million votes cast.

When both Odinga and independent European Union election observers alleged fraud, ethnic violence broke out amongst many of Kenya’s tribes, particularly between the Kikuyu and Luo.


In response to the unrest, former U.N. Secretary General Kofi Annan chaired a panel of African leaders that brokered a power-sharing agreement, making Odinga Prime Minister under President Kibaki.

The panel also established the Waki Commission on Post-Election Violence, to investigate the post-election clashes. The Waki Commission recommended establishing a special independent tribunal with international participation to bring to justice individuals responsible for the clashes.

The Commission also recommended that, should the Kenyan government fail to establish a tribunal, the International Criminal Court (ICC) at The Hague, Netherlands, would hold the hearings.

In July, international pressure mounted for Kenya to take action on addressing the 2007 violence. On Jul. 9, having seen no progress toward the establishment of a tribunal, Annan delivered a sealed list of suspects to the ICC.

On Jul. 27, the EU issued a statement further pressuring Kenya to establish a tribunal, as well as to institute election reforms to prevent future incidents.

“Prompt implementation of the agreed reforms are of critical importance for reconciliation, nation-building, development and prevention of further conflict in Kenya,” said the EU statement.

Though a majority of Kenyans reportedly support the ICC hearing the case, both President Kibaki and Prime Minister Odinga want local courts to handle the matter.

Human rights advocates are frustrated at the Kenyan government’s response.

“Bringing justice to these victims is the most urgent test of the coalition government’s willingness to resolve Kenya’s crisis,” said Georgette Gagnon, Africa Director at Human Rights Watch. “The cabinet just resoundingly failed that test.”

Briggs Bomba is Director of Campaigns at Africa Action, a Washington-based organisation that advocates for U.S. policy change toward African countries. He told IPS that the latest move by the Kenyan government is not unexpected.

“I don’t think it’s surprising that Kenya is now talking about not having a special tribunal,” said Bomba. “We do not think that there was an intention or a commitment in the first place to really get to the bottom of the post- election violence that was witnessed.”

Bomba also said that Kenya’s domestic judicial system would likely be unable to handle this case.

“The fact that we are talking of events that took place almost two years ago now, and the local judicial processes have been unable to do anything up to now, really undermines confidence that all of a sudden, the local processes are going to be able to step up and deal with this matter,” said Bomba.

He added, “I think this is one case where there is evidence that the local court process has already failed.”

HRW called for a robust response from the U.S. and the rest of the international community. “The U.S. and Kenya’s other international partners should insist in no uncertain terms that, until an independent judicial mechanism is established in Kenya, there can be no ‘business as usual,’ ” said Gagnon.

Kenya is the first planned stop on U.S. Secretary of State Hillary Clinton’s seven-nation, eleven-day trip to Africa, which begins this week. In an open letter to Secretary Clinton dated Jul. 31, HRW urged Clinton to take a tough stance on the issue of tribunals and human rights in Kenya.

The letter pressed Clinton to “urge Kenya to return to the principles of the Waki Commission recommendations” and “publicly state that the U.S. may consider the imposition of targeted sanctions, including travel bans, against those deemed most responsible for serious human rights violations.”

Bomba, however, thinks that a strong response from the U.S. is unlikely. “The U.S. is playing this very carefully. I think they do not want to completely ratchet up tensions in the country.”

Bomba also predicted that such an approach would likely be ineffectual: “It [the U.S. response] will be gradual pressure on the authorities in Kenya, which I feel will not be effective in getting them to move and act.”

 
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