The Nation (Nairobi)
Nderitu Gachagua
9 July 2009
opinion
Nairobi — Currently, our country Kenya is in a dilemma over what to do with post-election violence instigators and perpetrators.
There are those who argue for a local tribunal on the grounds that this will ensure all who took part in the mayhem will be caught in the net, while The Hague option will only target the high-profile planners and instigators.
The advocates of The Hague option argue that the local tribunal is likely to be interfered with politically and the only way is to try the masterminds under international law.
Many of us have a problem with either of these options for the following reasons:In opting for the formation of a tribunal or trial at The Hague, are we not admitting that we are incapable of conducting these trials ourselves?
Does that not make Kenya a failed State?
In deciding whichever route to take, the interest of Kenya as a State must be paramount, and any direction that may lead to chaos must be avoided even if this means making the international community unhappy.
We are told that there are about six high-profile personalities including Cabinet ministers currently in office who are in the "Waki envelope".
I predict that on the adoption of The Hague option, these personalities will not willingly board aircraft and head for their trial at The Hague. They are likely to go back to their ethnic fiefdoms and seek protection from their supporters.
They will resist arrest, and given the state of polarisation currently in the country, there will be many sympathisers who will rush to their aid.
This, in my view, is what may be the birth of real warlords in Kenya. Let us not deceive ourselves that this cannot happen. Warlords have caused mayhem in Somalia which is next door, and whose country has been lawless for 19 years.
On the option of a local tribunal I am sceptical on whether anyone would be willing to come forward and give evidence against the alleged perpetrators without fear of reprisals.
I am also sceptical whether the police are capable of giving such potential witnesses the necessary protection.
Recently, the Parliamentary Committee on Security visited Kirinyaga and Mathira to collect evidence on the Gathaithi Mungiki killings.
No witnesses showed up, and given that the killings in Mathira were on a small scale as compared to the mayhem in January 2008, this should serve as a lesson. All the atrocities committed are offences under the law ,and specifically the Penal Code.
Why is it that the Attorney-General, who has unfettered power under Section 26 of the Constitution, is unable to prosecute the alleged offenders?
In my view, this country's leadership must take back control of this matter and proceed in a manner that takes national interest into account. This is what the South Africans did after apartheid.
It is important to note that the atrocities committed against indigenous people of South Africa are much more serious than what happened in Kenya last year.
The South African people rose to the occasion, and through a Justice, Truth and Reconciliation commission, were able to save their country. This is a lesson that we in Kenya should learn from and possibly emulate.
There is absolutely no reason even now why the Attorney-General cannot move with speed and prosecute all the alleged offenders in our courts.
Simultaneously, the leadership should operationalise the Justice, Truth and Reconciliation Act so that a healing process starts and which will ultimately culminate in Kenyans living in harmony.
It would be highly irresponsible of the leadership were they to allow the country to disintegrate as politicians settle political scores by attempting to send their rivals to The Hague or to subject them to a highly-politicised local trial.
Mr Gachagua, a former Mathira MP, is secretary-general, Grand National Union.
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