KENYA CORNERED

Kenya’s attempts to delay punishment of top suspects accused of crimes against humanity on Thursday backfired after chief mediator Kofi Annan abruptly handed over the secret list to the International Criminal Court.

What started as recommendations for the formation of a commission of inquiry into the violence following the presidential election in 2007 is now formally an international judicial matter and Kenya’s options have all but ended.

Irritated by the deadlines set by the Panel of Eminent African Personalities, which brokered a deal to end the violence last year, the government sent a delegation to Mr Annan and later to negotiate directly with the prosecutor at the ICC, Mr Luis Moreno-Ocampo.

The reception in Europe was far from warm. Mr Annan thought Kenyan lacked the political will to punish the perpetrators of the violence.

His advice was for the leaders to speak to Mr Moreno-Ocampo first and then he would communicate his decision.

He summoned the other members of the panel of Eminent African Personalities, Mr Benjamin Mkapa of Tanzania and Ms Graça Machel of South Africa and they decided to hand over the list of suspects to the International Criminal Court.

His “communication” on Thursday caught everyone by surprise and threw the government into a panic.

Both the Party of National Unity and the Orange Democratic Movement have paid lip service to the need to end impunity without real commitment to punishment for crimes against humanity.

ODM, according to a party apparatchik, is “focusing on... the officials who were in charge when innocent people were killed by police.”

The feeling in ODM is that more of PNU people stand to be prosecuted than its own.

The dossier it sent to the International Criminal Court in January last year consisted of evidence of murder by the State, including postmortem reports showing that victims had been shot.

On the other hand, PNU appears to believe that the bloody crackdown on protesters was a law and order issue, which is necessary to preserve the state, and that the Mungiki slaughter in Naivasha and elsewhere was “spontaneous” retaliation for killings and mass evictions reported in the Rift Valley and elsewhere. In other words, ODM started it.

In both parties, those responsible for the slaughter believe that they could threaten new violence to deter prosecutions.

Some have argued that what is needed is “healing” and “reconciliation” rather than prosecution.

This explains the fashionable idea of referring even the worst criminals to the Truth, Justice and Reconciliation Commission.