Violence: Debate rages on Kibaki amnesty hint

Top Grand Coalition leaders were on Tuesday divided as debate on whether to charge those behind post-election violence raged on.

While some called for full implementation of the Waki report, others trashed it.

Members of the Cabinet also appeared to be split on what exactly should be done, with some backing the proposal to temper justice with forgiveness and others saying that those named in the secret list handed over to Peace Mediator Kofi Annan should face the law.

Deputy Prime Minister Musalia Mudavadi and Cabinet ministers Martha Karua and Mutula Kilonzo cautioned that the decision to inject bits of forgiveness in the implementation should be handled with a lot of care because it could encourage impunity.

Meanwhile, panic among bigwigs in ODM and PNU is reported to be behind the apparent change of heart by President Kibaki and Prime Minister Raila Odinga over the full implementation of the Waki and Kriegler reports.

Reality on the seriousness of the issue began to dawn on the politicians after Appeal Court Judge Philip Waki presented his report, which proposed that those behind the post-election violence were either to be tried before a local tribunal or at the International Criminal Court.

The report, it is understood, brought to the fore evidence, which some PNU and ODM leaders realised could easily go beyond the jurisdiction of Police Commissioner Hussein Ali and Kenyan courts, and land key politicians into the hands of the International Criminal Court prosecutors at The Hague in The Netherlands.

The findings of Mr Justice Waki’s team, it is said, brought up evidence against leaders in both Grand Coalition partners.

It is significant to note that once a politician is accused of committing crimes against humanity, the issue of pardon or forgiveness does not arise, since International Law does not provide for amnesty in such matters.

This is why politicians are said to have approached the principals with pleas to temper justice with forgiveness.

For instance, sources said, President Kibaki was approached by a number of politicians during last weekend’s peace rally in Nakuru, where they prevailed upon him not to expose some leaders to the international experts at the Hague.

Rule of law

On Tuesday, the Law Society of Kenya chairman Okong’o O’Mogeni, Kenyan National Commission on Human Rights boss Florence Jaoko and former nominated MP Njoki Ndung’u, said that tempering justice with mercy will erode the rule of law.

Ms Ndung’u said ministers who were on the Waki list must step aside to allow for its implementation and if they are found innocent, they should be reinstated to the Cabinet.

However, Cabinet ministers Kiraitu Murungi, Najib Balala, Soita Shitanda, Fred Gumo and Paul Otuoma said although justice should be pursued to some extent, it was important to forgive for the sake of reconciliation in the country.

But Foreign Affairs minister Moses Wetang’ula said the Waki report should be implemented as much as possible to the extent that it addresses justice for the victims as well as ensuring the country did not slide back into anarchy.

Mr Wetang’ula said if implementation of the report meant healing of the nation then it should be implemented, however, if its implementation would cause more divisions and portend danger, then caution should be taken and the country should weigh what was good for it.

Heal the nation

He said punishment alone does not heal a nation and condoning impunity does not build a country.

Mr Mudavadi, while cautioning on the issue of amnesty, warned that the public was unlikely to accept forgiveness in cases where evidence of extensive abuse of human rights was clear.

Ms Karua said President Kibaki and Mr Odinga promised the public that the reports would be implemented in full and expressed confidence that they would fulfil their pledge.

“The position we have is to implement the report. I heard them make the promise to implement it in full when they received the report from Waki,” she said.

Ms Karua said that once those named to have been behind the post-election violence are taken before the tribunal, there are those who are likely to get lesser sentences.

“Implementation means upholding the law. Once you go before a tribunal, there are mitigating factors that could make the judgment lighter,” she said.

She named other alternatives as restitutive justice, which would mean Kenya borrowing from the path that other countries such as Rwanda took after the 1994 genocide.

The international law carried provisions, which handle minor offences committed against humanity, she said, adding: “This means that you have to be open minded about the report.”

Mr Kilonzo opposed the President and PM’s proposals of pardon because it was tantamount to abdicating in abiding by the rule of law.

He said that the Waki proposals encouraged law and order, not the application of the law of the jungle such as murder, rape and destruction of property whenever one was disatisfied with an outcome.

The Nairobi Metropolitan minister said all those named should face the tribunal, which will determine whether or not they were guilty.

“I disagree with the proposals by the President and Prime Minister of tempering justice with forgiveness… the victims also want to see justice,” he added.

Mr Shitanda, Mr Otuoma and Mr Gumo said if the report was implemented in full, the country should be prepared to face the consequences.

“If you try to implement the Waki report in full you will burn the country,” Mr Shitanda who spoke to the Nation from South Africa where he was on official duty said.

The Housing minister said the problem the country faced was caused by the institution of presidency, which all communities were fighting to occupy.

Mr Otuoma said the report cannot be implemented apart from the factors that contributed to the violence like the incompetence of the Electoral Commission, which precipitated the chaos.

From impunity

He said even as Kenya needed to get away from impunity by ensuring justice to the victims, reconciliation was more important for the country.

Agriculture minister William Ruto dismissed the report describing it as a “sham and a waste of time”.

Speaking on arrival from The Netherlands, Mr Ruto said that Mr Justice Waki had failed in the mandate the mediation team had given him and had instead thrown the country into unnecessary anxiety.

Instead of the Waki team completing the work, he said, it had delayed it by recommending the formation of a tribunal, which will take a long time.

Mr Ruto said that Justice Waki had already incriminated individuals who were in the secret list despite not having evidence against them.

“(Justice) Waki says clearly he had no time to investigate these people and therefore he has no evidence, but at the same time, he is including them in the list instead of completing investigations,” he added.

Mr Balala said it was difficult to implement the Waki report because all Kenyans played a role in the mayhem.

He said leaders facing a tribunal would be too explosive for the country to handle when it quickly required healing.

“We should handle the report very carefully to bring unity. We should unify the country against the costs of divisions,” he said.