musings: February 2009

Sunday, 08 February 2009

Commentary (by Gitobu Imanyara) - The Hague is the better option

Updated 16 hr(s) 8 min(s) ago

By Gitobu Imanyara

Justice Waki and his team were obviously right in not leaving any ambiguities or uncertainties that the Government could use as justification for not implementing their recommendations. In the event of 45 days lapsing without a local tribunal, the default would automatically trigger off the next stage. That is why the Government attempted to ambush Members of Parliament by rushing in a Bill that was deeply flawed. MP’s rightly refused to be used as a rubberstamp and employed a perfectly lawful technicality to pave the way for suspects to face the International Criminal Court at The Hague. We now have a real opportunity to arrest the culture of impunity. The sad thing is that Prime Minister Raila Odinga appears hell-bent on joining that rank after a distinguished and heroic track record as a pro-democracy and human rights activist.

Entrenching a deeply flawed piece of legislation that purports to set up a local tribunal to bring to justice those who bear the greatest responsibility for the post poll violence and its attendant crimes against humanity will have the effect of legalising impunity. The promise that the Bill can be amended once we pass the constitutional amendment is a cynical ruse to fool Kenyans. We know better than that. The Bill to establish the local tribunal will only require a simple majority and we know from hard experience that an ordinary Bill can be passed or rejected by as few as nine MPs. We cannot afford to take any risk and there are good reasons for rejecting this attempt to entrench the Bill.

Psychological trauma

Firstly the Government waited until the very last moment to call a Speaker’s Kamukunji (informal assembly) to hear the Minister read the contents of the Bill in secret. Members did not have sufficient time to look at the Bill and consider its implications and worse, the Bill that was published on the very day they wanted us to enact it.

Kenyans remember only too well what happened to witnesses in the Ouko Commission. Those who were not killed suffer irreparable psychological trauma. They have become zombies while the killers of former Foreign minister Dr Robert Ouko continue to walk free.

To set up a local tribunal without first putting in place a constitutionally guaranteed Witness Protection Office independent of the Attorney General will ensure that no credible witness will appear before such tribunal.

Arguments have been proffered by some human rights groups and even some diplomatic missions in Nairobi that the presence of international persons as judges and prosecutors will guarantee the local tribunal’s independence. To them I ask: Wasn’t Mr John Troon of the Scotland Yard and his team of investigators not internationally reputed persons?

Did their presence prevent termination of the Ouko Commission just as it was about to call in the chief suspect? And Julie Ward? Hasn’t Julie’s father spent a fortune and brought some of the world’s top investigators? What has been the result? International investigations into the Anglo Leasing Finance scam were frustrated by the Government only this week. Why do we have such short memories? Has the Attorney General whom we want to protect witnesses done anything to show he has the capacity or willingness to do so? Witnesses who will appear before the tribunal will require protection long after the tribunal has concluded its business.

We are told that sending suspects to The Hague will delay the process. But suppose we set up the local tribunal; where are the remand homes and the secure prisons to hold suspects? In which prison or remand home in Kenya can we hold a high ranking suspect? Would we not be inviting a sure calamity? Imagine holding a suspect at the Eldoret Prison or the Industrial Area Remand Home! How long will it take to build remand homes and prisons and who will fund it?

And that is not all, the local tribunal is wholly dependent for its financial needs on estimates from the Ministry of Justice, National Cohesion and Constitutional Affairs. Suppose Parliament as a result of political pressure denies the minister the funds? Would the Government not say our hands are tied because we have no funds? Hasn’t the Ministry of Justice and Constitution Affairs frustrated the proper functioning of the Kenyan National Commission on Human Rights by denying it funds?

Atrocious crimes

Finally we are told that those named can continue holding executive office until they are indicted. How, for example can a departmental head continue in office and be expected to facilitate investigation of himself or herself by persons in his or her department? We need to be serious!

Finally what about the "Principals" in whose names machetes were carried to cut to size "foreigners" and commit atrocious crimes against people whose only crime was to have been born with a name different from theirs? Will the "Principals" stay in office and be expected to facilitate independent and impartial pre-indictment procedures?

Come on Kenyans we have no alternative but to send these people to The Hague! Even if one of them is locked up we will have sent a powerful message that the era of impunity is over.

Mr Gitobu Imanyara is the CCU party leader and MP for Central Imenti.

Imanyara@yahoo.com

Commentary (By Mutahi Ngunyi) - Why The Hague seems to be our only option

By MUTAHI NGUNYIPosted Saturday, February 7 2009 at 16:44

In Summary

* They should be expunged from our politics. This is the purification we crave

The problem with “… election jokes is that they get elected”. And nothing describes Mr Ababu Namwamba better than this.

Initially, his aggression was “cute”; now it borders on adolescent mischief. As a result, the guy has fallen from grace to grass. Or has he? This brings me to my first submission regarding the week.

Mr Namwamba is either a dangerous novice or a crafty operator. His polemics in Parliament this week had nothing to do with First Lady Lucy Kibaki. She was just a side show.

The main show was meant to shield Mr William Ruto. And what is more: It worked. Immediately the First Lady was mentioned, Parliament was derailed.

Focus shifted from Mr Ruto and the maize scandal to the possibility that she could be a maize baron. The drama was captivating. And if this was Mr Namwamba’s intention, it was clever.

However, his motive was unclear. Why shield Mr Ruto? On this one, your guess is as good as mine. If, to the contrary, his motive was pure, but his actions were driven by “boyish” impulses, we must ask him to grow up!

My second submission regards Mr Ruto. Do we believe him? I don’t. In fact, the more he defends himself, the more I doubt him.

He reminds me of the Kanu “hawks”: they were devious, shameless and bold. When he paraded a disabled miller from Kariobangi on TV, the minister had no shame. He thought it was good strategy, but I think it was crass. It was an insult to our intelligence. More so when he declared that this was the only miller he had helped. But there is another thing.

Now that he is under siege, he will retreat to the tribe for back up. He always does this. And in my view, this is an insult to the dignity of the Kalenjin people.

This is why I invite them to consider two things. As he whips their emotions in rallies this weekend, they must remember what former president Moi used to tell us: “kama mbaya, mbaya” (if it is rotten, it is rotten!)

If Mr Ruto’s defence on the maize scandal is not convincing, they must not defend him blindly.

Second, and in the words of Nikita Khrushchev, “… if you feed the people with propaganda, they will listen today, they will listen tomorrow, they will listen the day after tomorrow, but on the fourth day, they will tell you ‘go to hell’!”.

I invite the Kalenjin nation to weigh the words of the minister and his cronies this weekend. If they feed them on nothing but propaganda, they must ask them to “go to hell”. To do so is to be liberated.

My third submission is about The Hague. Some MPs are sabotaging the Special Tribunal Bill. And, in my view, they are inspired by God.

Personally, I opposed The Hague before the maize and oil scandals hit us. And when this happened, I realised that we are still in a state of war. That the war mongers have simply changed tact and relocated from the tribe to the coalition government.

Instead of using crude weapons, they are killing poor people using scandals. Now I am even suspicious of the mysterious fires.

In sum, these war mongers are with us and are entrenched. They are wealthy; they are connected. In fact, they are sub-human. And this is why we must hand them over to a force bigger than us. One they cannot manipulate: The Hague.

We want their visas to be cancelled, their children to be expelled from foreign countries and their assets to be frozen. More fundamentally, they should be expunged from our politics. This is the purification we crave as a country.

The “sabotaging” MPs should, therefore, know that they have read the mood of the nation correctly. They must sabotage the passing of the Bill on Tuesday in the interest of Kenya. But there are two complications here.

One, it is possible that some of the MPs have “eaten” money and they feel obliged to support this Bill. But if they are pricked by their conscience on Tuesday, this should be their justification for sabotage: “…you cannot buy a politician: you can only rent one.”

In other words, we have two sets of MPs; those with a conscience and those for hire. If the MPs with a conscience have decided to sabotage the Bill, my invitation is for the MPs-for-hire to join them. We will repay their act of “kindness” handsomely at the right time. Or what do you think?

The second complication has to do with the tribe. Parliament might support The Hague, but the tribes of Kenya can decide to sabotage this. To avert the crisis ahead, we should borrow from the story of General Ts’ao Ts’ao.

As this general was rebuilding the Hans Empire, his army began to seethe with rebellion. Ts’ao Ts’ao knew that things were bad. And so he had to turn to his closest friend and favourite army commander.

He told the commander: “I want the loan of your head to show the troops”. The commander, of course, was surprised by this. He protested, declaring that he had done no wrong.

But Ts’ao Ts’ao made it clear that if he did not behead him, there would be a mutiny and many would die. At this point, the commander knew that his fate was sealed. He was beheaded the same day, his head mounted on a spike and displayed at the entrance of the army camps.

With this act, Ts’ao Ts’ao did not have to say much. If he could behead his favourite general and friend, the other soldiers figured out that they had no chance.

And this is how radical our tribes must be. To preserve the country, they are called to sacrifice their closest and favourite leaders. Especially those in the Waki List.

Similarly, they must be dramatic in the way we do this if we are to serve notice to future generations. Like Ts’ao Ts’ao, they must send their heads to The Hague. And if they fail to, the price of inaction will be unbearable in 2012.

Are we ready for this drama?