Human Rights Watch (Washington, DC)
Ben Rawlence And Clive Baldwin
16 June 2008
opinion
The debate about amnesty in Kenya has become intensely politicized. The Prime Minister and the President are taking apparently opposing positions. The dangers of the debate turning sour are obvious, threatening to undermine the fragile solidarity that gave birth to the National Accord and Reconciliation Act and the coalition government. What should be the way forward?
The debate is clearly fuelled by political considerations, but it shouldn't be. There is in fact very little to debate at all. The issue need not be politicised, if all sides simply commit to respect and follow the rule of law.
Kenya is now at a difficult moment in its history. The country has the opportunity to address historical injustices through the commissions and reforms promised by the coalition government. But, as we have seen in the past, this window of opportunity is a fleeting one. If politicians do not rise above their partisan interests, the country's history of impunity, corruption and violence will become its future. In such difficult moments as this, the law is the surest guide to the right way forward. Indeed, how could it be otherwise? How can politicians speak of returning the country to law and order, without observing the law itself?
Amnesty is a delicate tool and should be used sparingly, if at all. Our experience of observing human rights around the globe shows that the best way to safeguard those rights is to make sure that those who violate them are brought to justice. Above all, crimes against humanity, war crimes, genocide, torture, and sexual violence should not be amnestied. Justice is for both the victims and the accused.
Mr. Kibaki and Mr. Odinga are both right. They are also both wrong. Mr. Odinga is right that the people currently in jail are the small fry, the pawns in a larger game, and that the police have questions to answer too, but he is wrong that they should simply be forgotten. Mr. Kibaki is right to want to prosecute them, but holding people without charge or for extended period of times with hearings continually postponed because the police have not made sufficient investigations is wrong.
According to the law and the rights of Kenya's citizens that are enshrined in the constitution, no one should be detained without charge indefinitely. Those who are currently in custody as a result of the post-election violence, some of whom have been held for months, should either be charged or released. Those who are eligible for bail should be allowed bail. The Kenya Police should do their job rigorously, investigate cases, assemble evidence and prosecute suspects without fear or favour. That means the perpetrators who killed and burned in places like Eldoret as well as those who did the same in Naivasha.
Admittedly, the perceived partiality of the police and their uneven response to the violence earlier this year create obstacles to credible investigation and prosecution. In that respect, among the police and security services are also persons who should be subject to investigation and prosecution for their role in extra-judicial killing, excessive use of force and other abuses of human rights committed during the clashes.
The 'elephant in the room' is of course the fact that some of those who organised and funded the clashes are actually in the government, on both sides, among PNU and ODM. The President and the Prime Minister know this. Their backers among the donor countries know it too. Very soon the commission established to investigate the violence will start holding hearings which will likely embarrass many senior people.
The quarrel about the fate of the 'youth' or the 'suspects' in custody is actually a precursor to a larger debate about how the country should deal with leaders who use violence to wage politics.
But this should not be an issue. Both ODM and PNU negotiators already pledged to Kofi Annan to 'identify, investigate and prosecute perpetrators' of post-election violence. So what is there to argue about? If Mr. Odinga and ODM believe the police and the justice system to be partisan, as part of the coalition government and with their new-found executive powers, it is their duty to make the system work fairly. And if Mr. Kibaki and PNU are really committed to the rule of law and rejecting amnesty then they should ensure that the leaders and inciters of violence (including those among the police and their own ranks), and not just the foot-soldiers, face justice too.
The debate about amnesty is a red herring. It should not be a debate at all. The real discussion is about how to make sure the law and the justice system function properly and fairly so that all criminals face the law. Full restoration of the rule of law, without exceptions, is the only way to ensure that Kenya will never again be subjected to the kind of violent, corrupt politics that nearly tore the country apart in 2008.
Ben Rawlence is Researcher and Clive Baldwin is Senior Legal Adviser with Human Rights Watch.
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Your article is very refreshing and straight to the point. For us to go forward, Kenya and Africa for that matter need to be serious and have respected the rule of law. There should be no point in negotiating with the scoundrel who broke the law, whatever the tribe or color. They are killers of women and children. They broke the law they pay for it. The Genocide Convention defines genocide as the intentional destruction of a group or in part, from this definition we can distinguish three elements to be applied to the specific situation: destruction, rape and killing as specific characteristics of a target group- as defined by Mr. B. Whitaker, UN Doc. E/CN.4/Sub.2/1985/6 of 2 July 1985, at 16. This is not for the Kenya government to decide but the international tribunal. The problem with Raila is that he is so natural tribelistic; he cannot see the right or wrong as long as it serves his interest which is to be the next president of Kenya, either legally or illegally. There will never be peace in Kenya as long as Raila lives and I hope I am wrong. Since I like Raila and I love Kenya. It is unfortunate that this has happened in the front of the world. What is surprising is the way the world has kept quiet in terms of the who was responsible for this. If the world was listening to the ODM’s the campaign slogans, they should have known that this was to happen. Their banner was “Majimbo” meaning separation by race and destruction. This was happening while the US and Europe watched and never raised a finger. They, the west also supported opposition, while all this was going on and clearly we all knew what was going to be the consequence. Their intention was the genocide of those who did not support them and specifically the kikuyu, there was genocide written all over but he west and the world ignored it. How can you offer a blanket amnesty to these people? It is apparent that a policy of ethnic cleansing, aimed at the elimination of a population from a given territory, without precise designation of the target group and without any clear intention of their destruction as a group, could fit into the definition of crimes against humanity. The majority of ethnic cleansing that was committed in the Rift valley and the rest of Kenya corresponds to crimes against humanity, given that they were systematic and massive attack on the civilian population. All `parties” meaning the most of ODM in the conflict' have committed some of the acts listed above as components of ethnic cleansing, and there are a large number of victims belonging to the different ethnics. In fact, the Secretary-General needs to officially pronounce that: In the territory of rift valley in Kenya, such inhuman acts have taken the form of so-called ethnic cleansing and widespread and systematic killings, rape and other forms of sexual assault performed on human...
The Genocide Convention defines genocide as the intentional destruction of a group, in whole or in part. From this definition we can distinguish three elements to be applied to the specific situation: destruction, rape and killing as specific characteristics of a target group- as defined by Mr. B. Whitaker, UN Doc. E/CN.4/Sub.2/1985/6 of 2 July 1985, at 16. In the case of Kenya rift valley there is evidence (e.g. oral evidence Kenya East African standard 3-31-08, UN studies and reports by the media) that the majority of the victims of ethnic cleansing belong to one kikuyu group - and that they were and still further threatened by extermination, as defined by Commission on Human Rights Resolution 1992/S-2/1, This is a specific ethnics group, recognized as a part of Kenyan in various legal acts, including constitutional provisions. They are also identifiable by reference to their ethnics and cultural background. These militia groups were organized way ahead of the polls, their mission clearly defined by the oppositions. They were to force some tribe’s and again specifically the kikuyu people as have been happening in the past from their homes by killing them. Very well planned and very well executed by the same people. These individual and the militia which the government was aware of have committed war crimes against the civilian population and need to be prosecuted by international tribunal. This includes people who are grand coalition government. There has not been one time that I have hard the west point a finger on who organized these crimes. This pattern of genocide against the kikuyu has been going on for too long in Kenya. Every election we have had in Kenya, kikuyu have paid a heavy price in terms of human lives. The world needs to stop this now and it starts now. Let those who broke the law, including the government official pay. This is not for the Kenya government to decide but the international tribunal. Let UN decide how to prosecute these criminals some of them in the present government.