How MPs paved the way to Hague court

The four-year crusade against impunity and the quest for accountability – for the 1,133 killed and thousands displaced in the 2007/8 post-election violence – turns a new page on Monday with the ruling from the International Criminal Court.

Whether the ICC confirms the cases against the six Kenyans cited as those bearing the greatest responsibility for fomenting the violence, the truth is that the country had all the time and many opportunities to deal with the perpetrators – big and small – within its own borders.

However, all the chances to set up a special tribunal were squandered as political scheming met deep-seated suspicion of the powers of such a tribunal to execute its mandate. The confluence ensured that The Hague-based court was activated to deliver justice to the victims of the crimes against humanity.

There were three attempts to set up a special tribunal to ensure that the masterminds of the violence were punished.

Former Justice minister Martha Karua tabled the first Bill seeking to ensure that the matter was handled through a special tribunal. But her efforts were to no avail as MPs poked holes in the validity of the Bill.

“Suppose the investigations point, God forbid, at His Excellency the President. Do you want to tell me that this country has the capacity to try him? Suppose the investigation points at the Prime Minister, do you want to convince the Republic of Kenya that we have the capacity to try him?” Those are some of the questions posed by Mr Cyrus Jirongo (Lugari) as he raised doubts about the viability of the tribunal.

That was in February 2009 – one year after the violence.

Ms Karua had managed to get President Kibaki and Prime Minister Raila Odinga to lobby MPs to agree on the approval of the Bill to set up a tribunal. But their overtures were rejected.

MPs rejected the Bill because they thought it was meant to protect individuals with high-level connections in government, whose names had been linked to killings and violence during that period.

Mr Mutula Kilonzo, then the minister for Nairobi Metropolitan Development, backed the tribunal saying Parliament ought to make it foolproof, but it ought not reject it. Mr Kilonzo succeeded Ms Karua in the Justice docket three months later.

After MPs threw the Bill out, the Cabinet sought more time to set up a tribunal by July. But the same forces came together and rejected the move. The matter was not even decided by Parliament. The Cabinet put it on ice.

It promised on July 30, 2009, to “accelerate” reforms in the Judiciary, the police and the investigating arms to ensure that the perpetrators of the post-election violence were brought to book.

As usual, the matter dragged on and it took the passage of a new Constitution one year later for the Cabinet to take the first slow step at reforms. It is yet to take the second step of cracking down on impunity.

With Mr Kilonzo’s Bill in cold storage, Imenti Central MP Gitobu Imanyara emerged with his own Bill. But it, too, was frustrated by the same forces who engineered quorum hitches in Parliament to ensure that debate never went on about the Bill.

The Bill is still pending in Parliament.

In December 2010, the same forces emerged and toyed with the idea of pulling Kenya out of the International Criminal Court. With a majority in the House, Kenya’s Parliament approved a resolution asking the government to pull out of the ICC.

The government didn’t act on the resolution. This was mainly because Mr Kilonzo warned that it would be a risky affair and would culminate in Kenya being labelled a pariah state.

In any event, according to the Rome Statute, such a move would not have halted ongoing cases, so it would have been pointless.