L. Muthoni Wanyeki
9 November 2009
opinion
Nairobi — It has become a game of chicken. Or dare. Who is going to blink first? Who is going to call the other's bluff? So far, it has been almost perfectly played.
The state has done just enough, the bare minimum, to maintain the masquerade that it intends to pursue criminal justice for the organised violence on both sides of the political divide as well as the state violence last year.
And Prosecutor of the International Criminal Court Luis Moreno Ocampo has done just enough to maintain pressure for state action, without committing himself entirely.
But we all see the charade for what it is.
The two principals are weighing the political costs of potential falling out with allies key to the succession.
And they are, in fact, captive to entrenched interests and manipulation and manoeuvring on all sides.
So they, no doubt, sighed in relief when parliament rejected the Bill to establish a Special Tribunal.
And again when the Cabinet refused to endorse the same.
They can throw up their hands and say, in effect, that they tried.
Meanwhile, our ever-smiling Attorney General oversees four farcical trials within our own criminal justice system -- carefully selected to represent the three forms of violence.
Needless to say, all fail to be successfully prosecuted, with the exception of the case involving the killing of a policeman.
And his perennial excuse for shoddy prosecutions is proved by the reasons given for the failure of two -- the case involving the Kiambaa church burning and the case involving the policeman caught on videotape shooting a civilian in the back. To wit, poor investigations.
Not that the ICC prosecutor is innocent of game playing of his own.
He has, of course, the right to assume responsibility for any given situation upon approval by the trial chamber.
He does not have to wait for a formal state referral.
But the fallout caused by his handling of the Darfur situation perhaps impedes him.
African states party to the ICC are not all, contrary to popular belief, rising up in arms against the ICC simply because they believe it is acceptable to rape and slaughter Africans and then get away with it.
They are angry that the critical role they played in getting the Darfur situation referred to the ICC by the United Nations Security Council was, in effect, ignored.
They are concerned about not just renewed but intensified hostilities not just in Darfur, but in Southern Sudan.
And, as African states party to the ICC were meeting to prepare for the review conference of the ICC, its prosecutor no doubt considered the effect of proceeding with Kenya without a formal state referral.
So there we have it. A carefully worded move from Ocampo.
Crimes against humanity were, in his opinion, committed.
He would like to open an investigation in December.
And an equally carefully worded counter-move from our two principals.
They remain, of course, committed to co-operation with the ICC.
When what we all demanded, expected was a non-equivocal state referral to the ICC.
Failing which, an equally non-equivocal take-up by the ICC's prosecutor.
Meanwhile, evidence is being eroded, survivors and witnesses are losing belief and faith.
The confidence of those who would intimidate them is growing.
But there are many ways to skin a cat.
At the community level, where perpetrators are known and belong to professional bodies, the complaints mechanisms of such bodies should be utilised.
At the national level, possibilities exist to lodge private prosecutions and Constitutional references.
And there are possibilities at the sub-regional, regional and international levels too, including the invocation of universal jurisdiction.
Many of us documented the violence and have retained evidence and access to both survivors and witnesses.
And we are not -- unlike our two Principals and the ICC Prosecutor -- caught up in the game.
We are Kenyans who believe that all forms of violence were unacceptable.
L. Muthoni Wanyeki is executive director of the Kenya Human Rights Commission
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