Commentary (by L. Muthoni Wanyeki) - Blessed relief, but watch out...

Ref: http://www.nationmedia.com/eastafrican/current/Opinion/oped100320085.htm

By L. MUTHONI WANYEKI

The sense of relief is almost palpable. The coalition government is en route, following last week’s opening of parliament. And the mediation process has released another set of agreements.

Thus we now have three transitional mechanisms. First, of course, is the inquiry into the electoral process in 2007. This will be established under the Commissions of Inquiry Act and is to be headed by three external electoral experts, with two representatives each from the Orange Democratic Movement and the Party of National Unity. The arrangement is, of course, not quite the entirely independent investigation and audit that many had asked for. Neither does the scope of the inquiry seem set to cover accountability for those found guilty of electoral or other offences.

Still, it is a start. And we all must do what we can to ensure that it enables us to establish the truth about the electoral process as well as achieve justice around it. Not vengefully or vindictively, as has been suggested recently, but to fix our entire electoral process to ensure this never happens again. And, most importantly, to restore the faith of Kenyans in the power of the vote.

Second is the inquiry into the post-election violence. Again, this process seems set to be established under the Commissions of Inquiry Act. The post-elections violence has been separated from the more long-term truth and justice issues to be dealt with in the third mechanism.

But academics and civil society have persistently demanded that all forms of post-election violence form part of the inquiry. This will entail not just investigating the initial organised militia violence in the North Rift and within Nairobi’s low-income areas, but also the organised militia violence in the South Rift in the name of “revenge.” It will also entail investigating the disproportionate use of force by the Kenya Police Force and the General Service Unit in Nairobi’s low-income areas and Nyanza.

THIS IS WHERE QUESTIONS OF definition — at least in a strictly legal sense — will be important. While Kenya is a state party to the Rome Statute establishing the International Criminal Court, it has not, as yet, enacted enabling domestic legislation to harmonise that statute with domestic law. The ICC covers genocide, war crimes, crimes against humanity and crimes of aggression (the last of which is still undefined).

A close reading of the statute was done for the Kenya Human Rights Institute last week by Betty Murungi of the Urgent Action Fund-Africa. Murungi is Kenya’s foremost expert on the ICC, having been involved in the negotiating of the Rome Statute, particularly addressing women’s human rights within the same.

In a strictly legal sense, while genocide and war crimes cannot have been said to have occurred, it is arguable that crimes against humanity did. The problem is that, given our lack of enabling domestic legislation for the Rome Statute, any crimes found will have to be tried under relevant provisions of our Penal Code (and related legislation such as the Sexual Offenses Act). Any trials that ensue will thus be limited to murder, assault with a deadly weapon, rape, defilement, destruction and theft of property and so on. Which seems wholly inadequate for what actually occurred.

Third and finally is the decision to establish, by statute, a Truth, Justice and Reconciliation Commission. The TJRC will also cover violations of economic, social and cultural rights, such as those occasioned by historical injustices with respect to land. We need to ensure that, among others, the report of the task force headed by Prof Makau Mutua of the Kenya Human Rights Commission does not go to waste.

Still I, for one, share the immense sense of relief that most Kenyans feel. And I am encouraged by the steps forward on issues that the human-rights and women’s movement have always held to be important. But let’s not rest easy simply because a grand coalition is in place — its advent is actually cause for us to be more alert than ever before.

L. Muthoni Wanyeki is executive director of the Kenya Human Rights Commission