Business Daily (Nairobi)
James Thuo Gathii
20 May 2008
column
All the parties in the grand coalition campaigned on pledges of toughness on crime. None of the parties campaigned on anything other than a law and order platform in so far as safeguarding the security of Kenyans and their property was concerned.
PNU's manifesto declared it believed in justice for all "irrespective of their origins, religious affiliation or social status." ODM on its part declared on its 2007 election website that "Kenyans have a right to sleep safely in their homes, walk safely on the streets and drive safely on the roads.
Governments have a duty to maintain that security." Not to be left out, Kalonzo Musyoka's ODM-K declared that "Insecurity destroys lives and property.It breeds fear, discourages investment and social progress and disrupts work and other regular activities and programs. Insecurity must be brought to an end."
Given what these parties declared regarding the significance with which they treated insecurity, it is surprising to see just how much they have shifted their positions on holding individuals who may be responsible for causing loss of human life and property accountable through fair, transparent and expeditious investigations and if necessary judicial processes.
Just what has changed so much since the 2007 election campaigns that sections of Central Kenya politicians and leading ODM politicians are calling for amnesty or release of suspects associated with violent crime? Your guess on this is as good as mine.
What worries me is just how far our politicians are willing to push the view that all Kenyans are willing to look ahead and forget our most recent violent past by releasing those currently on charges related to all manner of violence related charges including pre and post- election period. I would like to argue that in addition to all those arguments being made about impunity especially those relating to human rights and international humanitarian norms, impunity is an economic problem. This is why.
First, loss of life and the destruction and theft of property affect the most significant factors of production in an economy. Killing off parts of our labour force or maiming some of them while displacing hundreds of thousands of others is no way to grow an economy.
Destroying or stealing property also undermines the very basis upon which an economy's production system rests. Doing nothing to those who kill, maim, destroy or steal is to send the message that even when violence strikes at the heart of our economy in such a fundamental way as it did during the crisis in the early part of this year, its perpetrators can get away scot-free.
Promoting impunity is therefore to tell business-people and entrepreneurs that politicians will rescue such suspects from the accountability processes established by law without any iota of responsibility.
Indeed that their lives and those of their work force as well as their property is fair game for violent gangs to act upon without any potential for suffering the consequence.
In fact some politicians have gone as far as suggesting that destruction of property and the taking or maiming of human life was fair game because the suspects in custody were responding to a stolen election.
Second, impunity is a bad incentive for future behaviour. In fact, impunity is a reward for engaging in illegal behaviour. It creates the perfect scenario for future repetition.
After all, since no consequences are meted to those responsible for killing, maiming and stealing during a political crisis, the signal to future perpetrators is that violence will be the means by which the next group will seek to vindicate its claims. After all, their politicians will come to their rescue. In short, impunity legitimises violence as an available tool in political warfare.
Third, the Kenyan government has over the last several years made it a priority to create certainty and predictability in the economy for investors.
Expeditious enforcement of contracts and other business deals as well as putting in place a legal framework to enable businesses to thrive has been a major reform focus.
These reforms in the economy will be greatly undermined by the weak enforcement of our public laws when they intersect with business interests. If every five years investors will expect to make the kind of losses they made earlier this year, then our investment environment will not attract more investors.
I understand the pressure to make political peace within the grand coalition. But this political peace is demanding too much of the values Kenyans have fought for and died in the long struggle for democracy and the rule of law.
As a country we ought not to easily give up the values of continuing to strengthen and consolidate the rule of law in both public and private law. For these reasons, I propose the following prudential guidelines.
First, that any deals involve trade-offs between impunity and justice be channelled within one forum to avoid contradictory outcomes. This would mean that the current patchwork of efforts to deal with amnesty such as recent amendments to the Public Officers Ethics Act and the National Ethnic and Race Relations Bill all be harmonised. Needless to say, political rallies are the least ideal venue to make decisions on how best to treat suspects of violence related crimes.
Second, avoid a policy of vindictive justice or even of revolutionary justice where only some but not all suspects are set out for special treatment. Even handedness, fairness and transparency in any amnesty deal would be crucial to any process considering amnesty.
That means suspects who are yet to be charged need to either be charged or set free if there is no evidence linking them to any crimes. Amnesties for those who have already been successfully prosecuted should not to be an option. After all, we have the prerogative of a Presidential pardon in appropriate cases.
Third, calls for amnesty must be informed by the view that building accountability in the criminal justice system is directly related to the confidence that entrepreneurs and business people have in our economy. No business person will invest or reinvest in Kenya if they perceive this country too weak-kneed to hold accountable those who kill, maim, loot, steal and destroy at the slightest chance.
Ultimately, ethnic reconciliation is not about extending blanket amnesties. While politicians who were once on different sides must sometimes make compromises to work together such as in the Grand Coalition, that does not mean going back to the days of impunity of one party era gangs like Jeshi la Mzee.
The country must be willing to draw a line somewhere to ensure its institutions and laws have efficacy. If we cannot do this, it will be impossible to persuade entrepreneurs to make the kind of commitments to invest here without having to fear the prospect of losing everything and those responsible getting off without even as much as a slap on the wrist. Kenya must unwaveringly say no to violence as a political tool.
Gathii is Governor George E. Pataki Professor of International Economic Law and Associate Dean for Scholarship and Research Designate, Albany Law School.
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