The fast-dawning reality that sponsors of last year’s post-election violence could face trial at The Hague has sent politicians into a panic with some holding secret meetings to try to figure out how to salvage their careers.
It is also said that businessmen and others named in a report on the violence reissued by the Kenya National Commission on Human Rights on Friday are equally anxious.
However, a flurry of meetings held since mediator Kofi Annan handed the list of suspects to the International Criminal Court (ICC) have yielded little other than new realignments on the political scene. There are few signs of consensus on the setting up of a local tribunal ahead of a Cabinet meeting tomorrow scheduled to discuss the matter.
Justice minister Mutula Kilonzo is set to re-table his proposed Bill for the establishment of a local tribunal which failed to gain Cabinet approval after a stalemate over its contents.
The Bill is the latest effort by President Kibaki and Prime Minister Raila Odinga to marhsall the Cabinet and later Parliament to set up a local tribunal to try the suspects.
“Do not fear, I have faced a treason charge before,” Mr Odinga said on Saturday.
The Sunday Nation has learnt that ministers and top officials from ODM and PNU have been meeting behind the scenes to discuss how to tackle the issue.
Anxiety heightened on a day when the Law Society of Kenya described the mood among Cabinet members as “confused” and termed the ongoing talks, both among ministers and MPs, as being full of “partisan, divisive and ethnic politics”.
LSK’s vice-chairman James Mwamu criticised the Cabinet for failing to reach a decision on the mode of forming a local tribunal to punish the suspects.
“If the government is unable or unwilling to form a local tribunal, then we’ll urge the UN Security Council to impose a special tribunal,” he said.
The first of last week’s meetings took place immediately after the Cabinet impasse on Tuesday when ministers and assistant ministers allied to ODM retreated to Mr Odinga’s home in Karen for a meeting that lasted about six hours.
They discussed the proceedings of the Cabinet meeting earlier that day and also attempted to craft a party position on the question of whether the leaders suspected of financing the post-poll violence should be tried locally or abroad, according to some present.
They told the Sunday Nation that there was no resolution either way on the issue. It is understood that Mr Odinga and Lands minister James Orengo made a powerful case on the merits of a local tribunal.
Deputy Prime Minister and Local Government minister Musalia Mudavadi, on the other hand, told the meeting that the Waki Commission was formed after a cross-party consensus.
He said the report eventually provided only two options: a local tribunal or trials at the ICC. Mr Mudavadi argued these were the only two options that were feasible at the moment.
But a number of other ministers opposed the push for a local tribunal. They insisted that the ICC was the avenue that might offer the best route for justice, expressing fears that the process could be manipulated if a tribunal was set up locally.
The meeting ended without achieving consensus, meaning that the Cabinet might come away without an answer given the array of positions that dot the political landscape.
Matters were complicated further on Saturday when Mr Odinga told supporters in Eldoret town that his position on the issue was not cast in stone.
He asked a crowd he was addressing whether they favoured a local tribunal or for suspects to be taken to The Hague, to which they replied that they backed The Hague option.
Mr Odinga said the government was listening, saying that ODM considers itself a victim of post-election violence which is why it is a pursuing a just outcome.
And speaking to the Sunday Nation on the telephone, Mr Kilonzo expressed optimism that the Cabinet would approve a Bill that would pave way for the formation of a local tribunal.
“I am confident we will strike consensus. I am a very cautious person so I won’t tell you what I have done so far, but I’m sure we will strike an agreement. Any arrangement we arrive at must be about law, not political arrangements. I can assure you any political arrangements will fail. A political arrangement means you arrest the wrong people or leave out some people who are guilty so we must go by law,” he said.
But other ministers were reading from a different script. Tourism minister Najib Balala gave an entirely different perspective yesterday, saying that a Truth, Justice and Reconciliation Commission was the best way forward.
His position reflected a change of heart among ministers who appear to be increasingly gravitating towards the truth and reconciliation option, despite previously advocating for trials at The Hague.
Speaking in Mombasa, Mr Balala, whose name was mentioned in the Kenya National Commission on Human Rights (KNCHR) report on post-poll violence, said the nation needs healing.
“If we want to place this nation on the right path then we should avoid The Hague or a local tribunal. Even if some people implicated in the violent poll were to be sentenced to death it will not help anybody,” Mr Balala said.
“A truth and reconciliation commission would play a major role in bringing Kenyans together. We need to forgive each other so that we can live in harmony,” said the minister.
Mr Balala said he would take KNCHR to court for mentioning his name in its report, saying he was not involved in planning violence last year.
On Saturday, opinion poll firm Synnovate (formerly Steadman) showed there is overwhelming support among the public for the trial of the people behind the violence.
The issue has raised political temperatures and led to a number of realignments. Some camps have reacted to the pressure being applied on Kenya by the international community with a mixture of panic and canvassing for support among MPs.
A close ally of a senior politician who has been the subject of persistent rumours that he is on the Waki list told the Sunday Nation they were at a loss as to why the international community was applying so much pressure.
“The government has done everything including sending (Attorney General Amos) Wako to Geneva to demonstrate what has been done so far, how many cases have been brought to court and how many people have been released. We don’t know what they want next,” he said.
Among those in Cabinet said to favour a local tribunal are Mr Odinga, Internal security minister George Saitoti, Mr Mudavadi and Mr Kilonzo. President Kibaki has also been on the record lobbying for such a tribunal although he has been vague in his public pronouncements on the issue.
Other ministers have not take a public stance although there remain significant differences within Cabinet.
At last week’s meeting, Prof Saitoti is said to have warned colleagues that it would be suicidal for Kenya to try to pick a fight with former UN secretary general Kofi Annan or the international community, saying that could lead to a path of isolation on the international stage.
He said diplomats of Mr Annan’s stature have the capacity to work in a “networked” fashion, a fact which could leave Kenya in an awkward position.
This week, the European Union made it clear it would support all efforts aimed at making sure the perpetrators of violence have their day in court. That position has also been forcefully expressed by the US State Department.
On the other hand, writing in the Sunday Nation last week, Mr Ruto expressed the view that the Waki commission from which the list of suspects was drawn is flawed.
“The Waki report says that there is no link between the post-election violence and the announcement of the fraudulent presidential election results. The report’s refusal to acknowledge facts and overwhelming evidence, and the failure to see the obvious link is sickening in its deceitfulness.
“Mr Justice Waki, himself a most fortunate survivor of the crime of being condemned unheard in the infamous ‘radical surgery’ chose to disregard the caution of prudence by recklessly contravening the Commission of Inquiries Act, (Cap 102), Laws of Kenya and went ahead to condemn others unheard, forwarding their names in an envelope and creating the very prejudicial impression that those people are guilty. In my view, he ought to have conducted himself according to the highest standard expected of a Judge of the great calibre that we thought Waki is,” he wrote.
The differing positions on the political scene have set the stage for a debate at Cabinet on Monday which will be watched keenly both locally and abroad to see whether the two sides in government will be able to strike a consensus on the matter.