13 July 2009

Kenya: Annan's is One of Many Options


Nairobi — The wording was diplomatic, but the message showed that there was more to the story than met the eye.

The message? That Kofi Annan, following consultations with the two other members of the African Union's Panel of Eminent Personalities, Graca Machel and Benjamin Mkapa, had handed over the infamous 'envelope' to the prosecutor of the International Criminal Court.

But, if the manner it was received by the Grand Coalition Government was indicative of panic, its reception by the public was another matter -- an overwhelming majority voted in favour of the mediator's move following the news that evening, across the key television stations.

Just as the mediator and the rest of the panel may have lost patience with the government's obvious prevarication on the matter of justice for survivors of the post-elections violence, so has the public.

True, many internally displaced people continue to express the need for restorative justice -- their living conditions remain precarious and only restitution of their homes and livelihoods will suffice.

True too, there is concern about how this move -- or any move towards punitive justice will affect communal relations on the ground. But the demand for justice is irrefutable.

However, some clarifications are required -- because much confusion and misinformation surround everything to do with the ICC.

First and foremost, the ICC can only take up a situation in one of three ways -- at states' own request, by referral from the United Nations Security Council or by the prosecutor's own decision.

The government has said it may request take-up in a year.

That clearly does not preclude the prosecutor from proceeding should the wishy-washiness witnessed to date continue.

Second, the ICC will not be the magic bullet.

Should it take up Kenya as a situation, it will have to proceed by sifting through all of the reports it has received on the situation, including that of the Commission of Inquiry into the Post Election Violence, to prepare for its own investigation.

It is only after its own investigation that the prosecutor can present names to the chamber seeking leave to indict.

And those names may or may not tally with those in the reports it has received and those within the CIPEV's 'envelope.' This preparation will take time but not take as long as the government seems to have assumed.

Third, take-up by the ICC does not preclude the need for Kenya to decide on how it will handle suspected lower and mid-level perpetrators.

The ICC will, at most, deal with a handful of the worst perpetrators -- those with command responsibility.

Hopefully, these will be broadly representative of the three forms of violence experienced -- the increasingly organised violence in the north Rift, the equally organised counter-violence in central, Nairobi and the south Rift and the violence committed by the security services. But, they may not be.

And, we will need to deal with prosecutions of all of the others in any case.

That being the case, the debate about which way to go for the others is still not off the table.

All that the mediator's latest move has done is build pressure for the resolution of that debate -- and in a manner that is acceptable to the public and in line with international and regional human rights standards.

That is what is key -- not the intricacies of wading through the personal impunity and succession interests of various sections of the House that would impede any real movement on justice. The mediator's latest move is a stark reminder of that fact.

The talk of a Special Division of the High Court, which could by set up by the Executive, without the Legislature's involvement is fundamentally unacceptable to the public.

L. Muthoni Wanyeki is the Executive Director of the Kenya Human Rights Commission (KHRC)

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