|Mr. Kofi Annan, former United Nations Secretary General|
The list was compiled by Justice Philip Waki's Commission of Inquiry into the Post-Election Violence (CIPEV) and handed to Annan last year. His July action pre-empted an earlier agreement with the government, giving it an extension until the end of August to set up a special tribunal. The Waki Commission had intended this tribunal to be independent from Kenya's judicial system, with international and local judges and investigators.
Annan had become involved in Kenya's reckoning in January 2008 as the African Union's (AU) mediator. Two months later, President Mwai Kibaki and Prime Minister Raila Odinga signed an agreement which included setting up the CIPEV. In mid-October 2008 in Nairobi, Justice Waki handed over the CIPEV's report and a secret envelope containing a list of high-level perpetrators to Annan for safekeeping.
Annan gave up waiting for the government to take action after a delegation of Kenyan politicians visited him in Geneva, took a tour of the ICC in The Hague and met the Chief Prosecutor, Luis Moreno-Ocampo. The team was led by Minister of Justice Mutula Kilonzo (President Daniel arap Moi's former lawyer), with much-criticised Attorney General, Amos Wako; Minister of Lands James Orengo; Assistant Minister of Justice William Cheptuno; and three other officials.
The delegation had been seeking more time and suggested that the accused should be tried not by a special tribunal but by a specially constituted section of Kenya's own High Court. That would not require a constitutional amendment, unlike the special tribunal, but the court's independence would be questioned. During the months before he went to Geneva, Justice Minister Kilonzo had been pressing for more time and consideration of Kenya's special circumstances.
Kenyans want a trial in The Hague
Kilonzo argued that a tribunal would divide Kenya and that the government did not have the necessary funds. He made plans in June for Ambassador Bethwell Kiplagat, a former diplomat and civil servant from the Rift Valley, to organise a conference in July to get feedback about a special tribunal, all of which caused further delays; Kiplagat has been suggested as head of a truth and reconciliation commission. The recent budget from the Minister of Finance, Uhuru Kenyatta, provided no money for witness protection (AC Vol 50 No 12). All this helps explain why 53% of those surveyed in May by the South Consulting Group (which was originally contracted by donors to inform and educate Kenyan voters before the elections) wanted a trial in The Hague, with only 33% supporting a special tribunal. A poll by Steadman shows 68% supporting a trial in The Hague, with 13% favouring a local trial.
To safeguard himself against spin by the Kenyan politicians, Ocampo asked them to agree and sign minutes of their meeting on 3 July, which are posted on the ICC's website. They show that the Kenyan government has until the end of September to provide the following: a 'report on the status of the investigation and prosecutions' and any other information requested by the ICC prosecutor; 'information of measures put in place to ensure the safety of victims and witnesses'; and 'information on the modalities for conducting national investigations and prosecutions of those responsible for the 2007 [post-election] violence through a special tribunal or other judicial mechanism adopted by the Kenyan parliament, with clear benchmarks over the next 12 months'.
The government has committed itself to ending the impunity of those responsible for the most serious crimes and is bound to refer such cases to the ICC under Article 14 of the Rome Statute, should parliament fail to approve the establishment of a special tribunal. Wilfred Nderitu, head of the Kenyan chapter of the International Commission of Jurists, thinks that this means that if the ICC receives no assurances from the government of a special tribunal by the end of September, Ocampo will take over.
The ICC, which has been looking at the Kenya situation since 5 February 2008, is empowered to begin a formal investigation as a court of last resort only if Kenya fails to meet its commitments. Yet Kenya could nominally comply while carrying on as usual and procrastinate for up to another year until June 2010 - or undermine any court that is set up, particularly if it is an alternative mechanism such as a special section of the High Court. That means the cases would be heard in the run-up to the 2012 elections, risking more chaos. Kenya's wily politicians might then take the opportunity to ask for another extension.
Ocampo explained that if Kenya did not meet its deadlines or if the court did not conform to international standards, the ICC would then take over and decide whether to take the case up. The recommendations of the Waki Commission also state the ICC should take over the case if a special tribunal is set up, but the process has been subverted (see Box). Leaks to the local press from the closed-door meeting between the Kenyan team and Ocampo speak of charged exchanges. Ocampo should expect more subterfuge from the politicians.
No justice, no faith
Just after Ocampo's meeting with the Kenyan officials, Annan announced that he was handing over the Waki Commission's list to The Hague, saying 'justice delayed is justice denied'. This move short-circuited the attempts of those politicians who have little interest in establishing a special tribunal or in prosecuting anyone but their adversaries to delay any resolution by proposing an alternative 'judicial mechanism' instead of the special tribunal.
On 1 July, Annan told the AU that their 'outcry against justice demeans the yearning for human dignity that resides in every African heart', and 'represents a step backward in the battle against impunity'. We hear that before he announced that he was passing the Waki envelope to Ocampo, Annan had six boxes of supporting material air-freighted out of Kenya. After that, Kenya's government faces huge pressure to get the special tribunal set up before September.
Pictures in the Nairobi Daily Nation of Liberia's ex-President Charles Taylor defending himself against war-crimes charges in The Hague are a sharp reminder to those who masterminded the 2007 post-election violence. The Waki Commission's envelope and the boxes of supporting material reached the ICC on 16 July. Ocampo already has opened the envelope and is keeping the contents secret in a vault.
The Chief Prosecutor will decide what to do next if the Kenyans have done nothing by September. Beatrice Le Fraper du Hellen, the ICC's Director of Jurisdiction, Complimentarity and Cooperation, has been analysing information on Kenya, with a recently increased team of 14. She said in April that if the ICC decided to act, it would do so 'relentlessly and immediately'. Diplomats from Western countries, including the United States, which is not a signatory to the ICC, have backed Annan's handover - although they say a special tribunal within Kenya would still be the best option.
On 16 July the European Union's representative in Kenya, Anna Brandt, backed calls for a special tribunal. She said that Western donors will cut off aid to Kenya and help the ICC if Kenya does not take action. It is not known if this statement was coordinated with those of Annan or Ocampo. A week earlier, Brandt had signed a five-year 17.5 billion Kenyan shilling (US$22.9 million) Swedish aid agreement: those and other commitments are now under threat.
On 14 July, the Kenyan cabinet met to consider the two draft laws, wrangled for four hours but failed to reach a consensus. The same thing happened again on 20 July, with continued splits along the party and factional lines that had divided parliament in February. Some MPs oppose any prosecutions for the election violence. Having voted against the special tribunal bill in February, when they said they favoured the ICC, they now say they want a truth and reconciliation commission.
This group includes a block of politicians from the Rift Valley: William Ntimama (listed in the Akilano Akiwumi report on ethnic clashes in the 1990s as a person who should be investigated further), Najib Balala, Franklin Bett and Charles Keter in the cabinet, Benjamin Langat, Zakayo Cheruiyot and Julius Kones, in parliament. They have recently been joined by the Orange Democratic Movement's (ODM) Minister of Agriculture, William Ruto, who had earlier disagreed with Odinga and favoured referral to the ICC when there was little prospect of a Hague trial. He said he feared the Kibaki government would be biased against politicians from the Rift, where most of the violence occurred. Like other MPs from various parts of the country, he seems to have thought that the ICC would not do anything until well after the 2012 election.
Ruto (who was recently made a Sabaot elder in conflict-ridden Mount Elgon) argues that establishing a special tribunal would precipitate more violence. He is against any legal proceedings on the post-election events which, he says, stemmed from the disputed 2007 election. Ruto wants the poll-riggers charged, but Ocampo has made it clear that the ICC is not a political but a criminal court.
Most MPs have vowed to vote against a special tribunal, suspicious that it will be manipulated. Among the most outspoken voices is Gitobu Imanyara, an MP and human rights activist, who wanted Annan to hand over the Waki envelope in January. Among Central Province politicians Imanyara and Safina party leader Paul Muite have claimed that they face threats for their stand against a local tribunal.
In May, a report by South Consulting claimed that 60 witnesses already have left Kenya in fear for their lives; the UN's Special Prosecutor, Philip Alston, said the same of witnesses who spoke to him. Others who voted against the special tribunal in February might do so again. The first law anchoring the tribunal in the constitution requires a two-thirds majority; the second setting up the special tribunal needs only a simple majority and thus could easily be used to water down the second law after the first was passed. Many MPs fear that this might allow the President or the Attorney General to dismiss judges, grant amnesties, end cases or otherwise interfere. Some of those against a special tribunal do not want it because they fear justice might be done, others because they fear it will not.
Those who do support a tribunal include those who believe it is desirable and possible, those who do not want to see Kenya labelled as a failed state, those who want to see more rather than fewer perpetrators tried, some lawyers who would prefer judicial proceedings to be on their turf and in full public view and some who fear that the ICC might not take up the case. The ICC could decide that the case does not qualify in terms of the number or duration of the killings; that it does not have evidence of deeds amounting to crimes against humanity as defined; or the evidence might not sustain an indictment.
In an interview published on 10 July by The Standard newspaper, Ocampo said that 'the crimes were probably crimes against humanity', and if necessary he would reach an impartial conclusion about whether or not to investigate the individuals named in the Waki envelope, while also considering other evidence.
Some supporters of President Kibaki's Party of National Unity, including Justice Minister Kilonzo, want a trial by a separate unit set up within the High Court, rather than by a special tribunal. Given the wide disrepute in which the judiciary, seen as malleable and subject to political manipulation, is held, many Kenyans would not support any connection to the High Court. Some lawyers say that if the tribunal became a division of the High Court, the Attorney General could terminate cases. PNU ministers Kiraitu Murungi, Moses Wetang'ula, John Michuki and George Saitoti were said to be against the amended laws necessary to establish a tribunal, presented by Kilonzo to the cabinet on 14 July. They would not support clauses stripping President Kibaki of his immunity from prosecution or other measures designed to preclude executive interference in any tribunal.
Martha Karua, who resigned this year as Minister of Justice, does not consider that either Kibaki or Odinga have the political will to set up a local tribunal. Odinga, who draws support from the areas worst affected by the post-election violence, appears isolated because of his support for a local tribunal. Some MPs believe that criminal convictions would eliminate their political opponents. The PNU has said that any of its members who are charged will be on their own, perhaps a sign of other partings of the way to come.
Already the ODM is split between Prime Minister Odinga and William Ruto, who claims that Odinga has abandoned his Rift Valley base. Meanwhile, there are other veiled hints of a new KK (Kikuyu-Kalenjin) alliance between Ruto and Finance Minister Kenyatta in anticipation of the 2012 election.
This speculation might be wishful thinking by all. Even if - against expectation - parliament approves a bill to set up the tribunal, the government may still decide to ignore or undermine it. Now, with the Waki envelope safely in The Hague, the ICC could take up the case even before the June 2010 deadline set by Ocampo for the government to reach its one-year benchmarks.
The increasing uncertainty about how Kenya's post-election violence will be addressed comes amidst a lack of leadership, an upsurge in criminal and gang violence and increasing ethnic polarisation and corruption. It leaves an irate public fearful of the future. Leaflets warning of future violence are circulating in the Rift Valley, while the criminal Mungiki gangs are said to be rearming their supporters. Without a resolution of the legal and political crisis, politicians are preparing for a worsening confrontation in the run-up to the 2012 elections.Africa Confidential.