Annan: Why I had to strike

Chief mediator Kofi Annan handed over the Waki list and haul of evidence to stop further delays in bringing suspects to justice, he revealed on Friday.

Speaking a day after his unexpected move, the former UN secretary general, who heads a Panel of Eminent African Personalities keeping watch over events in Nairobi, said his team was also “closely monitoring” the situation in Kenya.

It also emerged yesterday that Mr Annan had the support of the international community to press ahead as he did, in particular the US government, which praised his action on Friday.

In an interview with Saturday Nation, US ambassador Michael Ranneberger, said Mr Annan had his country’s full backing because Kenya appeared unwilling to try the suspects through a local process.

“We have not changed our position and we have always insisted on a local driven process but if the government fails, or is unwilling then the Hague is the next destination,’’ Mr Ranneberger said from Washington on Friday.

The US has previously rooted for a local tribunal but yesterday the envoy said the move by Mr Annan “shows the seriousness of the international community in ensuring that impunity is dealt with in Kenya”.

“This also gives the process a two-tier impetus that will see all those involved punished,” he added.

In an announcement that caused alarm in government circles, the former UN secretary general dramatically submitted the envelope containing the names of suspected masterminds of the 2007-2008 post-election violence to the International Criminal Court Chief Prosecutor Luis Moreno-Ocampo on Thursday.

The move by Mr Annan prompted high-level meetings between President Kibaki, Prime Minister Raila Odinga, Cabinet ministers Mutula Kilonzo and James Orengo and Attorney General Amos Wako.

However, lawyers’ groups, NGO representatives and other lobbyists welcomed the announcement as a telling blow to the culture of impunity in Kenya and a hopeful sign that the next General Election might not only be free and fair but also peaceful.

Speaking on behalf of Mr Annan yesterday, Mr Nasser Ega-Musa, the director of information at the UN, revealed that it is the former UN chief who advised the Kenyan delegation to go to the Hague and talk to Mr Moreno-Ocampo.

“He said he met the Kenyan delegation in Geneva and held very constructive talks with them and he is the one who advised them to go to the Hague and hold talks with the chief prosecutor,” Mr Musa told the Saturday Nation.

Mr Musa said Mr Annan handed over other materials on post-election violence in Kenya to ensure that justice is not delayed. Quoting Mr Annan, Mr Musa added that the Panel of Eminent African Personalities was supportive of efforts by the government to ensure that impunity of the past is brought to an end.

Other sources who spoke to the Saturday Nation added that the former UN chief was also unhappy with divisions in government over where the suspects should be tried. Mr Annan further felt that Kenya was not serious in bringing the suspects to book despite insisting that it was capable of handling its own affairs.

The African Union mandated the personalities, including former Tanzania President Benjamin Mkapa, former Mozambique First Lady Graca Machel, led by Mr Annan to mediate talks between ODM and PNU to end post-election violence.

Mr Annan chaired the National Dialogue and Reconciliation Committee, which was formed following an agreement between President Kibaki and Prime Minister Raila Odinga to help achieve sustainable peace, stability and justice through the rule of law and respect for human rights.

Pulled a fast one

The committee led to the formation of the Waki Commission, which investigated the causes and key perpetrators of post-election violence and proposed the formation of a local tribunal to try the culprits or their names be handed over to the ICC.

Parliament however shot down the first attempt to form a local tribunal in February.

And as the country continued haggling on where the culprits should be tried, Mr Annan pulled a fast one on local leaders by handing over the list containing names of the suspects to the ICC on Thursday.

On Friday, it emerged that Mr Annan could also have handed over the envelope because he felt Parliament was not ready to pass a Bill to allow the formation of a local tribunal.

Rather than wait until the move failed, Mr Annan decided to hasten the process by handing over the envelope, a source close to the former UN chief said.

Following the Kenyan ministers’ agreement with Mr Moreno-Ocampo, Mr Annan is further said to have realised that whether the local tribunal was formed or not there was already an alternative taking shape by the suspects being referred to the Hague.

Attorney General Amos Wako, Justice Minister Mutula Kilonzo and Lands Minister James Orengo met Mr Moreno-Ocampo recently during which the latter pushed for the inclusion of a clause in their agreement with him that the violence cases be handed over to ICC if Kenya fails to act.

The three are said to have gone outside their mandate given by President Kibaki and Mr Odinga and agreed with the referral. According to the government brief, accepting the suspects to be tried at the Hague would be an acknowledgement that Kenya is a failed state similar to Liberia, Sierra Leone and Democratic Republic of Congo.

The government is said to have wanted the trials to be done locally to safeguard Kenya’s sovereignty and built confidence in it globally.

The Kenyan ministers are said to have reiterated the government stand when they met Mr Annan.

They are, however, said to have disagreed on when the former UN chief should intervene and the time table and procedure for trials of the suspects.

While Mr Mutula is said to have said that there was no need for intervention, Mr Orengo said the mediator should keep watch of the process to help end impunity.

It was then that Mr Annan referred the ministers to Mr Moreno-Ocampo who made them sign minutes of their agreement to be binding.

“Mr Moreno-Ocampo did not want the leaders to come and use the agreements for political propaganda. He insisted the ICC is a court and not a political institution and that through integrity and credibility they had to reach an agreement,” a source said.

Insiders say the US has been pushing to have the key perpetrators of the violence face justice. It is understood the US has played a big role that has culminated in Mr Annan delivering the envelope to ICC prosecutor Moreno-Ocampo.

Interestingly though, the US as well as the UK seemed to have changed position after previously insisting that the suspects should be tried locally.

However, Mr Ranneberger says the US has never been opposed to the Hague option, which they have always seen as a preference if the Kenyan authorities fail to form the local tribunal.

“The Americans were key in making that decision. They had an apparent change of mind on concluding that these people (the Coalition leaders) are jokers,’’ said the source who did not want to be named because he is not authorised to talk to the Press.

Change law

In recent weeks, the government has been changing positions on how to punish suspects of the elections violence.

While President Kibaki and Prime Minister Raila Odinga have constantly given assurance of taking decisive action promising that government would not tolerate impunity, they have not taken a clear path.

On arrival from Geneva, Mr Kilonzo, Mr Orengo and Mr Wako revealed that the Government planned to change key parts of the proposed tribunal law in an attempt to get MPs to vote for it.

Amendments to the tribunal Bill were top on the agenda of the meeting between a Kenyan delegation and Mr Annan, who mediated an end to the political crisis.

Two clauses are likely to be amended: The one that requires office holders to be charged for crimes committed by their juniors and another which said suspects are to resign and face arrest the moment they are named.

The amendments are intended to disarm MPs and get them to vote for a local tribunal. The two clauses were contested by MPs and may have caused the Bill to be rejected by Parliament.

Some politicians and top government officials would like every person held to account for their own actions and for suspects to resign and be arrested once investigations are complete and evidence against them gathered.

Reports by Njeri Rugene, Lucas Barasa, Oliver Mathenge and Caroline Rwenji