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What next after the Ocampo deadline

It is coming to two years since the Kenyan leadership agreed to put in place necessary reforms to restore democracy, security and reconcile   hitherto hostile communities emerging from ugly and fatal protests against a bungled election.

The National Dialogue under the chairmanship of international mediator, former UN Secretary General, Kofi Annan agreed on a set of proposals that promised to end impunity and other ills in the society.  The  National  Accord on Peace and Reconciliation signed by the two principals, President Mwai Kibaki  and Prime Minister, Raila Odinga  resolved  to  establish   two  commissions of inquiry – one  to probe the  Electoral  Commission  of Kenya  (ECK) and – another  to inquire into the probable causes of the  2007 electoral violence.

South African retired Judge Johann Kriegler probed the ECK and recommended its dissolution for bungling the 2007 polls whose presidential winner will never be known. It came to pass. The ECK is no more – thanks to the thankless legislature that hastily disbanded the polls authority without weighing the consequences of a vacuum in a constitutional office. Parliamentarians are a major beneficiary of these disputed elections.

However, the  findings  and recommendations of  another inquiry  into the causes of the 2007 electoral violence was not  and is  not  a cup of tea to  some Members of Parliament and the Executive. That  explains  the  reneging  on the  promises to implement  reforms  contained in the Agenda IV drawn by  the  negotiators who happen to be ministers  in the  coalition government.

Justice Philip Waki presided over the Commission of Inquiry on the Post Election Violence (CIPEV) that made far reaching recommendations. The judge also compiled a list of potential suspects, some of who could be prominent people in the government. Amongst the recommendations  was the  setting up of  a  special   tribunal  to handle  post election  violence cases failing  to which  the  International Criminal Court (ICC ) should  take over  the trials.
The  government pleaded  for more  time  which was  granted but  now seems to be a  ploy to buy time  so that the  Accord  becomes obsolete  and  the  status quo continues. Annan set August 31 but ICC prosecutor, Luis-Moreno Ocampo extended the deadline to September 30 for the setting up of the special tribunal.  Time is running out, the Executive together with the Legislature have not agreed on whether to try the suspects locally or hand them over to ICC.

Notwithstanding  ICC deadline, the  government  is hell  bent on frustrating  Bills seeking to establish  the tribunal  as expressed  in the latest  abortive  attempt  to  adjourn  Parliament  to late  October way past  the date.

The political class is not for the trials either here or at The Hague. However,  deafening  noise surrounds  legislative debates  on the rest of the   reform agenda  that  includes the  methods to punish the  plotters and perpetrators  of post election violence  in which nearly 2,000 people perished  and  more than  half a million uprooted  from their homes.

The Judiciary that chokes in nearly a million backlogs of cases, some dating to independence in 1963, may not handle the suspects with the competence expected of such an institution. Those who bear the pains and scars of violence are increasingly impatient and doubtful about the judiciary’s ability to try the big fish. These fears are justified because the Judiciary is an appointee of the Executive, part of which is the culprit.

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In the observation that confusion and suspicion reign supreme in the supreme organ, a   Member of Parliament published a constitutional amendment Bill on a tribunal as part of the implementation of   Justice Waki’s   recommendations.  In view of the enormous public support of Gitobu Imanyara’s Bill, the government should take over the proposal as a face saving measure.

One thing is for certain:  The public   confidence in the judicial system and the legislature has been eroded beyond repair.  That being the case, seeking   justice away from home is a viable option.

Parliamentarians  who want  immunity  guarantees  for themselves play a complicity role  in the buying of  time  so that  the Accord  becomes obsolete  and the status quo continues. Whether that will work, only time will tell. 

(The writer is a former cabinet minister and secretary general of two major political parties email:


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