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.
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: email@example.com)