Gichinga Ndirangu
21 October 2008
opinion
Nairobi — The report of the Commission on Post-Election Violence chaired by Judge Philip Waki has, as expected, opened a torrent of debate on its prescriptions on ending impunity and reining in electoral violence.
Though focused on the 2007 violence, the report presents historical antecedents to politically-instigated violence.
Importantly, it debunks the widespread opinion that the violence was a result of the results announced by the Electoral Commission of Kenya, and instead challenges the conscience of the nation to take a hard look at deep historical grievances such as the intractable land problem in Rift Valley.
Since its release, debate on the Waki report has understandably, though inexcusably, centred on the alleged sponsors of the violence, without any attention being paid to punishing past perpetrators and instigators of similar violence.
Kenyans have a knack for seeking superficial solutions to complex problems. The mob-lynch mentality that is fast taking root seeks to scratch at the surface rather than addressing the underlying causes.
We are fast becoming a panel-beating country, more preoccupied with cosmetics and aesthetics. Our failure to learn from history renders us at risk of repeating past mistakes and falling into the same pitfalls as was the case with the politically-instigated violence of 1991, 1997 and 2007.
The 1991 and 1997 clashes were comprehensively investigated by the Kiliku Parliamentary Select Committee and the Judicial Commission of Inquiry chaired by Mr Justice Akilano Akiwumi. Both teams proposed further investigation and the possible prosecution of the perpetrators of the violence.
But the Government's response to both reports was ambivalent, and their recommendations were largely ignored. Some of those implicated sit in Cabinet or hold senior Government positions. There is no reason to justify this impunity.
It is hypocritical to seek the prosecution of those implicated in the Waki report while turning a blind eye to the victims of the rape, maiming, murder and destruction of property occasioned by the 1991 and 1997 clashes alongside the Wagalla massacre.
All human rights abuses must be punished without distinction. After all, the victims of past abuses are no less deserving of legal succour and ventilation of their rights than those of early this year.
It is a cardinal principle that the law should never be applied selectively. Equality before the law requires that all crimes be investigated and prosecuted, and that suspects - irrespective of their status - have their day in court.
There is no statute of limitations to criminal offences and, therefore, delay is no bar to bringing to book those who acquiesced to past crimes.
While delay complicates the collation of evidence and difficulties in sourcing witnesses who may suffer memory lapses which could complicate successful prosecution, this cannot excuse inaction.
If the Cabinet decides to prosecute those suspected of being behind the 2007 violence, it must also charge those recommended for prosecution by the Akiwumi and Kiliku reports.
It is not lost on Kenyans that some of those shouting themselves hoarse seeking the prosecution of those adversely mentioned in the Waki report are motivated by self-interest to ward off potential opponents in 2012 rather than by a genuine desire to secure justice.
Some of these politicians have perfected the art of speaking with a forked tongue and have been at the forefront of seeking amnesty for youths charged with committing serious crimes during the post-election violence, ostensibly because these youth who raped, killed, maimed and destroyed property were "fighting for democracy".
Since two wrongs do not make a right, why the duplicity over due process?
The Waki report will be incomplete if all those implicated in the 2007 post-election violence are not prosecuted.
While it may be politically expedient to remain fixated on the 10 "star suspects", the fact that many of those who committed heinous crimes are walking scot-free should draw indignation and motivate a collective call to action.
The police must launch comprehensive investigations into all pre- and post-election violence and arraign all the suspects in court without delay or hesitation.
In the absence of this, it is idle to imagine that the Waki report will help end impunity. We must avoid instant-coffee solutions that play to the gallery on what is politically convenient and expedient.
If we cannot muster the moral courage to go the whole hog, we must turn serious attention to national healing and reconciliation.
In dealing with this, there is little doubt that the work of the proposed Truth, Justice and Reconciliation Commission will be cut out for it.
Mr Ndirangu is a lawyer and policy analyst.
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