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