Ending impunity: Why I support special tribunal

The constitution of Kenya (Amendment) (No.3) Act, 2009, popularly known as the Imanyara Bill, intends to bring about the establishment of a special tribunal, which is supposed to investigate, prosecute and determine cases against those responsible for serious crimes committed after the December 2007 elections.

This Bill will not prevent the International Criminal Court, established under the Rome Statute, to have concurrent jurisdiction to investigate and prosecute persons bearing the greatest responsibility for the post-election violence.

The tribunal is essential if we are to end impunity, misery and pain. One of the areas where impunity has been arrogantly exercised is in tribal clashes, which have been open ethnic cleansing.

They were executed in 1991 for the first time and continued in 1992 to coincide with that year’s general election, with the sole purpose of influencing the outcome. More than 1,000 people died, about 300,000 were displaced, and property worth millions of shillings destroyed. The incumbent won the elections.

None of those who committed the crimes were ever made to face justice. After the clashes, the leadership went around the affected areas preaching peace and calling for reconciliation.

No peace was realised and many of those dispossessed were never allowed to return to their homes. Neither the dead, the maimed, the raped, nor those who lost property were compensated by the government. There was no reconciliation, and pain continued.

Since those who committed the crimes were never called to account, the same type of tribal clashes were repeated to coincide with the 1997 General Elections. Once again the incumbent won. Yet, again those who committed those crimes were never called to account or punished for the serious crimes they committed.

Once the elections were over, the leadership went around the affected areas preaching peace and reconciliation. But the displaced were never allowed to go back to their homes and nobody has ever been compensated.

It was not surprising, therefore, that during the 2007 general elections, the same tribal clashes were perpetrated with utmost force, again to influence the outcome of the elections. The incumbent was declared the winner.

This time round, even some organs of government became openly partisan and things got out of hand. Within a very short time, a thousand-plus were killed, and thousands others maimed and raped. Over half a million were displaced and property worth millions destroyed.

As the violence escalated, the international community intervened to stop the violence. Subsequently, and working closely with representatives of the protagonists, the international community created processes that would restore law and order, bring the fighting parties to the negotiating table, punish those responsible, and prevent future violence.

Once a coalition government had been formed, the leadership went around the affected areas as usual and preached peace and reconciliation.

As expected, no peace or reconciliation has ever been realised. To this day, the majority of those affected by the post-election violence of 2007, and indeed, those from the previous years, are still languishing in IDP camps, town centres and on road reserves.

The maimed, the raped and those assaulted are still suffering and have never been compensated. Such gross violations of human rights have been executed with utmost impunity.

The proposed legal process through the special tribunal is intended to end impunity. Tribal clashes are only some of the crimes committed with impunity. Others include dealing with illegal drugs, extra-judicial killings, corruption and grabbing of public land. If this special tribunal is not effected, there will be a repeat of similar crimes.

There is no other way to deal with serious human rights violations such as tribal clashes committed over a long period during every general election since 1991, culminating in the atrocities of 2007.

The only effective deterrent is to call those who have committed the crimes to account. The rule of law must be restored. The special tribunal will help us get justice. It will encourage us to have confidence in our judicial system, believe in our country again, and develop the courage to deal with our own demons.

Prof Maathai, a Nobel laureate, is the founder of the Green Belt Movement.