Kenya should use poll chaos case to strengthen its justice system

• Africa must prove to the world that she is ready, willing and able to end impunity

On the eve of the visit to Kenya by International Criminal Court Prosecutor Luis Moreno-Ocampo, the debate on bringing to justice perpetrators of post-election violence has failed to address key questions critical to understanding the place and proper role, if any, of the Court in the Kenyan situation.

The controversies that surround issues of jurisdiction of the ICC over nationals of sovereign states, both here in Kenya and in neighbouring Sudan, are nothing new.

And as this debate, which has dominated front pages of the Kenyan media rages, an important milestone event, whose outcome had a special resonance to efforts by the African Union to end the culture of impunity, was taking place in Abuja, Nigeria.

Last week a Special Summit of the Peace and Security Council of the African Union convened to consider and adopt the recommendation of the AU High Level Panel on Darfur. It looked at how best to effectively and comprehensively address the issues of accountability and combating impunity, on the one hand, and peace, healing and reconciliation on the other.

Sovereign right

In examining the Kenya and Darfur reports, many striking parallels cannot escape attention. While one might argue that circumstances that led to international interventions in the two countries are different, the fundamentals, both in the conclusions and recommendations are more or less the same.

Both initiatives are led by Panels of Eminent African Personalities. Darfur was led by former South African President Thabo Mbeki, while Kenya’s post-election crisis was headed by former UN Secretary-General Kofi Annan. They both derived their mandates from the African Union.

Both reports seek to draw a road map on how best the inter-related issues of peace, justice, reconciliation and healing could be addressed.

However, on the key question of the role of the ICC, there is a major divergence between the Mbeki and Annan approaches. In its conclusion on issue of justice and impunity, the Mbeki report completely excludes the possibility of resort to the International Criminal Court. In fact, it neither considers the ICC, even remotely, as an alternative nor substitute to existing internal criminal justice system in Sudan.

In the only paragraph on the International Criminal Court, the Mbeki Report concludes: “The International Criminal Court is a court of last resort, which complements the national judicial systems. It is also a court of limited capacity.

This means that even when deploying its full resources, it can only deal with a few individuals out of any situation of which it is seized. It follows that where widespread crimes have been committed, the overwhelming majority of potential criminal cases must be dealt with by the national system.”

On the other hand, the Waki-Annan Report shuts the doors tight to any local options other than a Special Tribunal that should be separate and independent from existing national criminal justice system.

It would appear that this recommendation by Waki for a Special Tribunal established by Parliament, failing which the International Criminal Court referral mechanism would automatically be triggered, was a fatal mistake. Shockingly, no one has come forward to try and cure or at least, attempt a rescue.

Even more disturbing is why the Kenya and Darfur reports should have such a wide divergence on the role of the ICC.

To fully grasp the genesis of the controversy, one has to examine the difficulties faced by the diplomatic conference in trying to overcome serious, politically sensitive and legally complex issues that even threatened to break up the conference in Rome.