Road to justice starts

Architects of the violence in which more than 1,300 were killed last year will pay for their crimes in a process kicked off by Mr Kofi Annan on Friday.

The chief mediator signalled clearly that he would be faithful to the “spirit, letter and intent” of the Waki Commission report which states that perpetrators of the post-election violence must be punished.

In a tough statement a day after 93 MPs voted to defeat the Constitution of Kenya (Amendment) Bill, 2009, Mr Annan described it as major setback and a blow to the efforts to end the culture of impunity.

The Waki Commission had given the government up to March 1 to set up the special tribunal and ensure that it was operational. But the failure to push through the Bill to entrench the tribunal in the Constitution, wrote off efforts to proceed with another to establish the tribunal whose time line lapsed two weeks ago — January 30.

Eminent Persons

The road to justice starts with the convening of the Panel of Eminent Persons, bringing together Mr Annan, former Tanzanian president Benjamin Mkapa and former South African first lady Graca Machel. Mr Annan said the panel would consider what actions to take in line with the recommendations of the Waki commission of inquiry into post-election violence.

The commission had recommended that the International Criminal Court at The Hague should take over the prosecution of the masterminds, planners, financiers and perpetrators of post-election violence.

The second step is for the UN Security Council to vote on creation of an International Criminal Court for Kenya to try the suspects.

The third step is for the list of suspects to be handed over to the ICC Chief Prosecutor Luis Moreno-Ocampo from Argentina.

In the fourth and last step, the indictments will be issued -- whether public or private -- and then the arrests and trials can begin.

Mr Annan who negotiated the pact that ended the post election violence, said in the statement: “The CIPEV (Waki Commission) report was clear in its recommendations, which the Government has accepted.”

The ICC process raises the possibility of sealed indictments being issued against Cabinet ministers and other top government officials.

If this happens, senior figures who are usually too eager to travel abroad will dread having to leave the country for fear of arrest.

Such tactics were used against former Liberian President Charles Taylor who only became aware that he was wanted for international crimes once he had resigned and left his country for Nigeria.

The announcement came as Mr Annan expressed his regrets at the failure by Parliament to pass a Bill that would have cleared the way for establishment of a local tribunal to try the suspects.

Mr Annan asked President Kibaki and Prime Minister Raila Odinga to take up the onus of guiding the country through the reform phase to avoid a repeat of the December 2007 post-election violence.

He said a report by a consultancy firm — South Consulting — on the performance of the Grand Coalition had questioned the leadership of the President and the PM and asked them to take charge.

“The findings of the just-released independent report on the implementation of the KNDR (Serena Team) agreements and the defeat of the bill have underscored the absolute necessity for Kenya’s political leadership to live up to their responsibilities and to redouble their efforts to implement the agreements, if Kenya is to avoid a recurrence of violence in the immediate future,” he said.

“The Panel will now review the actions it should take in line with the spirit, letter and intent of that report. The CIPEV (Waki Commission) report was clear in its recommendations, which the Government has accepted,” he said in a statement to media houses.

The Waki report proposed that the names of key architects of post-election violence be handed over to the Special Tribunal for Kenya once established.

But should the Government fail to put in place a local tribunal — as happened on Thursday afternoon — the report recommended the names sealed in a secret envelope be forwarded to the ICC at The Hague in the Netherlands.

The envelope, which is in the hands of Mr Annan, also contains evidence that links powerful individuals in politics, government, business and the police to the post-election violence.

During the violence, at least 1,333 were killed while more than 600,000 were displaced from their homes.

“Both (list of offenders and evidence) will be kept in the custody of the Panel of African Eminent Personalities pending the establishment of a special tribunal to be set up in accordance with our recommendations. In default of setting up the Tribunal, consideration will be given by the Panel to forwarding the names of alleged perpetrators to the special prosecutor of the International Criminal Court (ICC) in The Hague to conduct further investigations in accordance with the ICC statutes. This is a major recommendation made by the Commission,” the report proposed.

The defeat of the Bill on Thursday handed the Panel an opportunity to consider the second option of sending names of six ministers, five MPs and other prominent people to The Hague to face Chief Prosecutor Moreno Ocampo.

Alternatively, the Panel can venture outside the Waki report and consider asking the UN to establish a Special Tribunal for Kenya on our soil or in another country.

It should be remembered that when the UN established the Special Court for Sierra Leone in January 2002, Mr Annan was at the helm of the UN. A key participant of that court was also a member of the Waki Commission.

The court could also be established in any of the countries in Eastern or Southern Africa just like the International Tribunal Court for Rwanda (ICTR) was set up in Tanzania to try suspects of the 2004 genocide in Rwanda.

The decision left President Kibaki and Mr Odinga in a precarious position since the two principals had signed an agreement to establish a local tribunal on December 17.

The President and the PM had lobbied MPs, including holding a meeting with ministers and assistant ministers on Tuesday to press them to vote for the Bill. The President even instructed Head of Civil Service Francis Muthaura to write a memo requiring them to turn up on Thursday and pass the Bill.

However, assistant ministers Danson Mungatana, Calist Mwatela, Wilfred Machage, Simeon Lesirma, and Sospeter Ojaamong broke ranks with the Government and voted to oppose the Bill.

Interestingly, MPs allied to deputy PM Uhuru Kenyatta and William Ruto voted against the Bill.

Drawing board

Asked about the defeat, Mr Odinga said: “Some things you win, some things you lose.”

Justice and Constitutional Affairs minister Martha Karua said Government has to go back to the drawing board to bring to justice those who visited violence on innocent women and children and killed thousands of others.

Ms Karua warned that with the defeat of the Bill, the mobs who looted and burnt down businesses and lit tyres on main roads to paralyse the country were likely to escape the hand of justice.

“We have to take responsibility as a Government and find ways of bring to justice the perpetrators of violence because The Hague only deals with planners and financiers of the chaos,” she said.