Politicizing Mau forest is suicidal

Daniel arap Moi’s sins are being felt by every Kenyan now. He it was who declared that a huge junk of land from the Mau forest would no longer be protected as water catchment. Instead he gave the land, free of charge, to his own son Gideon and his other very close Kalenjin friends Zakayo Cheruiyot, John Lokorio and Sammy Mwaita. The Kalenjins took the land and quickly sold it to land hungry Kenyans. The new buyers subdivided the land and sold it to yet other land hungry Kenyans, who cut down all the valuable trees.

As a result of this heinous act, started by Moi, the whole country is threatening to change into a hot barren land where not even a blade of grass would grow. Cows are dying, goats are dying, chickens are dying, men are dying, women are dying and children are dying; and when Kenyans complain, Kalenjin Members of Parliament led by William Ruto, protest that they are being ethnically ostracized . They are politicizing the Mau Forest, the lifeblood of Kenya , which Daniel arap Moi did not care if it vanished from the face of the earth, as long as his son and friends made money out of it, albeit illegally.

As the usual saviour of the country, Raila Odinga, the Prime Minister, let the cat out of the bag when he told Parliament, and indeed the rest of the country, that the man responsible for the current catastrophic weather condition is none other than the former President Daniel arap Moi. Being the shrewd politician he is he never even mentioned the old man’s name. All he did was to lay the names of the people allocated land at the priceless forest on the table and the man who did the allocation was automatically exposed. Before Raila laid the names on the table, William Ruto was breathing fire. He was on the warpath and did not want to hear anything about evicting the destroyers of Kenyan’s most valuable forest. According to him the settlers at the Mau forest had to be compensated heavily by the government before agreeing to be resettled anywhere else.

To the Kalenjins, Ruto became an instant hero. His popularity shot up so high, well above that of the former President Daniel arap Moi. His word became the law in the kalenjinland. He had acquired new powers and was threatening to use the powers to teach the Prime Minister a lesson. Ruto told Kalenjins to be ready to leave the ODM, which is seen as Raila Odinga’s party. Implicitly this was a clear message to Agwambo that in 2012 he will not get the Kalenjin support which gave him the sweeping victory of 2007. But Raila did not care. As far as he was concerned the truth and justice was more important than the Kalenjin threat. He told Parliament openly that he did not mind paying the political price for the stand he was taking and added: “I will not be intimidated. I have nothing to fear because I know what I am doing is in the best interest of this nation and I am speaking nothing but the truth.”

The truth of the matter is that the destruction of Mau Forest threatens the lives of millions of Kenya who depend on water flowing from the forests into no less than twelve rivers which include Nzoia River, Yala River, Nyando River, Sondu River, Mara River, Kerio River, Molo River, Ewaso Nyiro River, Njoro River, Nderit River, Makalia River benefiting Luos, Kikuyus, Maasais and Kalenjin themselves. Anyone trying to dry those rivers is playing with fire. Some of the rivers feed Kenya’s most picturesque and tourist attracting lakes like Lake Victoria, Lake Turkana, Lake Baringo, Lake Nakuru and Lake Natron. Some of these lakes are not the property of Kenya alone as they are to be found on the borders with neighboring countries Lake Victoria , Lake Turkana which is between Kenya and Ethiopia and Lake Natron which is between Kenya and Tanzania. Obviously Moi did not think of the trouble he was causing by dishing out the forest to his son and friends. But then it must be understood that stealing is the national pastime of the Tugen, which is the sub ethnic group of Kalenjin people from where the former President comes . Those who steal cattle from their neighbors are regarded as heroes. But the old man should have known that stealing a forest is a different matter as the consequences are now beginning to boomerang in the most hurting and throbbing manner.

William ole Ntimama is right; the eviction of the people living in the forest should not be delayed. It should have started yesterday and the country should be mobilized to start planting trees to replace the destroyed ones. All the youthful unemployed Kenyans should be mobilized into tree planting brigades. They should also be armed to fight whoever tries to stop them or to destroy the work they will be doing. The brigade should be led by Ongiek elders who have lived in the forest for years without destroying the ecosystem. The Government should not ignore the offer by Ongiek, who are the indigenous residents of the Mau forest, to show other Kenyans how to preserve the forest through the traditional methods.

Kenya’s agricultural production has taken a nosedive this year due to shortage of rainfall. Wildlife is also dwindling due to the harsh weather caused by the lack of rain. Without the wildlife tourism is likely to be doomed. All because Moi gave some very useful land to his son and friends; yet the Government says it will evict the people destroying the forest in three months’ time. Three months is a very long time in a country where almost everybody is desperately waiting for rainwater which is not coming. Instead of rushing to plant more trees now the politicians are bickering about whether or not evicting the Mau settlers is a political issue. Delaying those evictions is politicizing the Forest; and politicizing the Mau forest is a suicidal mission whose catastrophic results can be felt in the whole country today.

Cabinet plan to mislead ICC failed

The Cabinet has failed yet again. It has not agreed on how to try post election violence planners and financiers. So it has embarked on a disinformation exercise meant to mislead both the International Criminal Court and the people of Kenya. This plan, however, is likely to fail as miserably as the Cabinet is despondently divided. The idea of addressing a Press Conference, attended by every member of the Cabinet at State House, to announce the options available to deal with crimes committed during post election violence, was a face saving damage controlling exercise, which is also bound to fail desolately. The cat is now out of the bag. Kenyans are not able to agree on how to establish a credible, internationally recognized tribunal, which will try post election criminals, who caused the death of over 1,000 citizens and displaced more than 300,000 innocent men, women and children.

The outcome of all this laughable political drama is that ICC’s Moreno-Ocampo will now have no option but to move in with full speed. It will not be surprising at all if he immediately makes the names in the Waki envelop public, and proceeds to indict the named people, no matter how important they are. After all the Kibaki-Raila Cabinet has now publicly disowned the Waki Report and opted to pretend to do something the respected judge never recommended – establishing special High Court Division to try the culprit.

That division will command neither local nor international respect. It will be composed of the same corrupt judges presently manning the Judiciary. The question Moreno-Ocampo and all Kenyans who would like to see justice done following the post election bloodbath is : If Chief Justice Johnson Evans Gicheru has been unable to control , introduce discipline , end corruption and expedite trials in the courts under him , how can he control the Special High Court Division, Mwai Kibaki was talking about?

The body language of Ministers standing with the President at the Press conference spoke volumes. They obviously had agreed to disagree. The three camps were still poles apart. Mutula Kilonzo’s sensible option to establish a credible tribunal that would have denied the President any form of immunity faced serious opposition from John Michuki, Kiraitu Murungi and Moses Wetangula. Though ODM, and therefore the Prime Minister, supported Mutula Kilonzo, who obviously was also supported by the Vice President, Kalonzo Musyoka, President’s loyalists won the day. Or did they?

They argued that Kenya should not be legally controlled by foreigners. The third group that was made to believe they were true victors of the Cabinet verbal contest was made up of the people whose names Moreno-Ocampo is after: Uhuru Kenyatta, William Ruto and Najib Balala. This group, strangely backed by William ole Ntimama wanted to hear nothing about The Hague and nothing about a credible local tribunal. They claimed the country needed to heal the post election violence wounds. With the unspoken threat of preparedness to embark on similar violence, if they were pushed against the wall, they forced everyone to reluctantly agree with their proposal – a combination of TJRC and a revamped Special High Court Division to try the suspect. Because some of the suspects sat on the same table as those who were genuinely interested in true justice, everyone had to pretend to agree. In other words they all agreed to disagree.

Mwai Kibaki talked of four other options examined by the Cabinet. First, there was the Mutula Kilonzo’s Special Tribunal which was obviously rejected by the suspects backed by the President’s sycophants. For obvious reasons the Cabinet rejected this option. Secondly there was the referral to the International Criminal Court (ICC) option under article 14 of the Rome Statute which is about referral of a situation by a State Party. Section One of that Article says that a State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purposes of determining whether one or more specific persons should be charged with the commission of such crimes.

Section Two of the Article says as far as possible, a referral shall specify the relevant circumstances and be accompanied by such supporting documentation as is available to the State referring the situation. It is not difficult to imagine how Uhuru Kenyatta and William Ruto vehemently rejected this option backed by Najib Balala. They must have accused Mutula Kilonzo, Raila Odinga, James Orengo and Vice President, who suggested this alternative option, of trying to throw them into a lion’s den. What they forgot is that all the relevant documents have already been handed to the ICC Prosecutor Moreno-Ocampo by Justice Waki. The Cabinet decision will not stop the ball rolling into a formidable force that will sweep Ruto, Kenyatta and Balala right into The Hague.

The third option Kibaki talked about was withdrawal from the Rome Statute under Article 127 which says under Subsection One that a State Party may, by written notification addressed to the Secretary General of the United Nations, withdraw from the Statute. According to the Article the withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date. Subsection Two of the same Article clearly says that a State shall not be discharged, by reason of withdrawal, from obligations arising from this Statute while it was a party of the Statute, including any financial obligations which may have accrued.

It further states that the said State’s withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceeding in relation to which the withdrawing State has a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective. This means there is no way the culprits can escape Moreno-Ocampo’s net. Kibaki was also suggesting the repeal of the International Crimes Act of 2008, which cannot be done without the approval of Parliament. And Parliament seems to be determined to send the suspects to The Hague.

Kibaki’s fourth option was to try the suspect at the High Court under Section 8 of the International Crimes Act which says a person who is alleged to have committed an offence under of genocide, a war crime or crime against humanity, may be tried and punished in Kenya.The suspects in the Cabinet made sure this option was rejected because it still follows the ICC procedures. Looked at superficially, the option of establishing Special High Court Division may appear as a victory for Ruto, Kenyatta and Balala; but examining Kibaki-Raila Press Statement in details reveals that under Agwambo the Cabinet resolved it will not stand for impunity in the pursuit of justice, though it was also resolved that that the country should pursue national healing and reconciliation. The real and final winners were Raila and Kibaki who made the Cabinet publicly say that it reaffirmed its commitment to the rule of law, and in particular in its commitment to the International Criminal Court and will cooperate and fulfill its obligations to the Court. No wonder Uhuru and Ruto looked particularly gloomy at the Press Conference. The two know Moreno-Ocampo is on the way.

According to Kibaki and Raila the Cabinet will undertake accelerated far-reaching reforms in the Judiciary, Police and investigative arms of Government to enable them investigate, prosecute and try perpetrators of post election violence locally. This is the part that is deliberately confusing. It is obviously meant to calm Ruto and Kenyatta. Indirectly it is still opening the door for Moreno-Ocampo because everyone knows these crimes can neither be investigated nor prosecuted locally. This is the part of the Press Conference that is meant to mislead the ICC and keep them away for some time as tempers in Kenya cool down.

Police Commissioner Hussein Ali must also be shaking in his boots for Kibaki and Raila also said that the Cabinet will deal with other forms of impunity including extra-judicial killings , corruption and unlawful acquisition of public land and other assets. Obviously Raila and Kibaki know this suggestion will take a long time to implement and that is why they also proposed to amend the Truth Justice and Reconciliation Act to make TJRC more responsive and effective. If the amendment of this Act is meant to keep the ICC away, however, it will be rejected by Parliament with the contempt it deserves. The Cabinet’s confidence that with proper healing and reconciliation, Kenya will not face the events of last year’s post election violence will only come true if the perpetrators of the violence face international justice. This justice can only come through Moreno-Ocampo.

Posted by I am a at 4:21 AM

Kiplagat’s confession at TJRC necessary

Bethwel Kiplagat is a tainted man. He has a lot of rotten skeletons in his cupboard. But he is still the country’s best choice as the chairman of Truth, Justice and Reconciliation Commission (TJRC). Before he embarks on his daunting task, however, he needs to step down for a very short period and let his able assistant, Betty Murungi, take the chair as he becomes the first witness before the Commission to make a serious and genuine confession about his relations with Daniel Toroitich arap Moi. That way the country will establish authentic confidence and trust in the diplomat’s endeavors to heal its deep social, political and economic wounds. The more open Kiplagat becomes in his confessions, the more acceptable as a healer he will be to all Kenyans.

According to Section 7(2) (g) of the Truth, Justice and Reconciliation Act, Kiplagat will have powers, when he starts his job, to summon any serving or retired public officer to appear in person before his Commission to produce any document, thing or information that may be considered relevant to the function of the Commission. The country will eagerly wait to see whether the TJRC chairman will use that powers bestowed on him to summon former President Daniel arap Moi to explain to Kenyans how he became extremely wealthy when the majority of the people he ruled for well over 20 years don’t know where their next meal will come from. There is no way Kiplagat can avoid summoning Moi to also explain how he systematically violated Kenyans human rights. But before he does that, the TJRC boss must tell his own Commission publicly the role he played in assisting Moi in pulling down the country to its present low level of social, political and economic development.

Kenya is today struggling to develop politically after Jomo Kenyatta and Daniel arap Moi destroyed whatever achievements that were made by the gallant freedom fighters. This, the two leaders did by systematically amending the Constitution to give themselves despotic powers that ended up destroying all the rights and freedoms of the people. Under Moi and Kenyatta, Kenyans were denied freedoms of expression, association and assembly and, in some cases, freedom of movement. Jomo Kenyatta made sure only his own political party, Kanu, had the right to rule and when Daniel arap Moi took over, he made sure that that should be the case by a draconian law. Kiplagat may want to tell his Commission what role, as one of Moi’s top technocrats, he played in forcing the country to accept such a primitive political system.

Very important witnesses such as Koigi wa Wamwere and Njeru Kithangu who were jailed by Moi for political reasons have expressed misgivings about the authenticity and sincerity of Kiplagat’s TJRC because of his chairmanship. Koigi has said he will never appear before it because he has no confidence in it. Though Kiplagat will have powers to summon Koigi before his Commission, he should try to persuade the former detainee to give evidence willingly following his own confession. Kiplagat must tell his Commission what role he played in recommending to Moi, names of people to be detained. If he does not do so then he will have no moral authority to listen to Koigi’s sad story about how he was mistreated in jail by the former President.

Economically Kenya is potentially a very rich country. Today that wealth is enjoyed by a handful of people who were, by and large, connected to either President Jomo Kenyatta or President Daniel arap Moi. In the regimes led by the two leaders land was dished out to close relatives and selected few privileged people. Kiplagat must tell the Commission whether he was one of the few and whether or not he was one of those who made the selection. If he does not do so Kenyans will not take him seriously when he asks penetrating questions to those suspected of grabbing public land. The only way he can cleanse himself is by appearing before the Commission and making full confessions about what he knows and what he did to help land grabbers acquire more land illegally.

In both Kenyatta and Moi regimes top public jobs were only given to people of the same ethnic groups as the two Presidents. Indeed the trend has changed very little even today in Mwai Kibaki’s Government. Kiplagat was a top civil servant and diplomat under Daniel arap Moi. He had powers to hire and fire. People would like to know what role he played in advancing Moi’s nepotistic system of hiring ambassadors, permanent secretaries, Provincial Commissioners and District Commissioners. If he avoids telling the truth about this sensitive issue then he will lose the confidence Kenyans have in him as the TJRC chairman. The only way of putting the record straight is by appearing before Betty Murungi and calling a spade a spade, no matter how uncomfortable it may be to him.

Apart from jailing their political opponents without any trials, Jomo Kenyatta and Daniel arap Moi turned the Kenyan courts into instruments of political manipulations. Jails were full of political prisoners because there was no separation of powers between the Executive and the Judiciary. The independence of the Judiciary was destroyed by the two despots who had the sole powers to appoint, promote and demote judges and magistrates. What role did Kiplagat play, as one of Daniel arap Moi’s most trusted confidants, to assist him destroy justice in Kenya? Kenyans are eager to know the truth and only Kiplagat can give them that information. Before that, it will be difficult for people to believe that there will be any justice that can be done in this country through Kiplagat’s endeavours.

Through the leadership of Jomo Kenyatta and Daniel arap Moi Kenyans were mentally enslaved and denied to read a number of what was then described as “prohibited publication”. A number of free thinking Kenyans were jailed by the use of Section 53 (1) of the Penal Code which states that any person, otherwise than in his capacity and in the course of his duties as a public officer, prints, makes, imports, publishes, sells, supplies, offers for sale or supply, distributes, produces or has in his possession or under his control any prohibited publication is guilty of an offence and is liable to imprisonment for a term not exceeding three years. What role did Kiplagat play in drafting such an obnoxious law? Kenyans want to know the truth which can only be possible through the evidence given by the diplomat to the TJRC.

Despite all the compelling evidence that requires Kiplagat to appear before the TJRC, he should not be removed from its chairmanship because the real reason for its existence is to give all Kenyans, including Kiplagat, an opportunity to tell the truth that will lead the nation to seek justice, truth and reconciliation. Showing Kiplagat the door will not achieve that purpose.

Raila’s presidency endorsed by Kibaki

The message was as clear as daylight. Kikuyus and Luos have now sealed a formidable political pact. Raila Odinga is sure to be the next President of Kenya .Mwai Kibaki’s successful tour of Nyanza was an open endorsement of Raila Odinga’s presidency in 2012. That endorsement has catapulted Agwambo to the stratospheric political leadership in the next general election where other contenders for the high office will have no hope in hell of coming anywhere near the son of Jaramogi Oginga Odinga, the man who tried and failed to grab the leadership of Kenya. Unlike his father, Raila Odinga , has succeeded to convince the Kikuyus that they must now hand the political baton to someone from the lake – after all it has always been the people of lake who have willingly been used as stepping stones by all the Kikuyu leaders who have resided at State House.

First there was Jomo Kenyatta, who, despite all the pre-independence popularity, was still feared and therefore opposed by Daniel arap Moi’s Kalenjins, Maside Muliro’s Luhyas and Ronald Ngala’s Miji Kendas. Though he was, as usual, strongly backed by the populous Gema group, he could never have dreamt of taking over the leadership of Kanu, which formed the first independent Government of Kenya, without the support of the Luo Rightists under Tom Mboya and the more powerful Luo Leftists under Raila’s father Jaramogi. The 1963 Kikuyu- Luo political pact pushed a Kikuyu to the first presidency of Kenya. The first vice presidency of Kenya went to a Luo, Jaramogi Oginga Odinga, because of that powerful political arrangement. Today, Raila Odinga and Mwai Kibaki are reviving that deal.

Every time Kikuyus and Luo have come together, they have easily snatched political power in Kenya. Despite the forceful and clever British opposition to the Luo-Kikuyu pact in the colonial era, the two largest tribes of Kenya came together and took over the leadership of the country under Kanu. The British organized the Maasais, Kalenjins, Miji Kendas and Luhyas to form Kadu, which principally opposed to Kikuyu-Luo leadership, but miserably failed. That was just before independence in early 1960s.

When President Daniel arap Moi came to power through the Kikuyu consent when Kenyatta appointed him Vice President, a position he held until his boss died, he changed into one of the most iron fisted despot and it was not easy to remove him from office. Even after his term of office constitutionally ended in 2002, he tried to continue ruling Kenya through his former superior’s son, Uhuru Kenyatta.

It took Kikuyu-Luo unity to defeat Uhuru Kenyatta and put Mwai Kibaki in office. That unity has now been reborn making Raila Odinga a definite successor to the Commander in Chief of the Armed Forces in Kenya and the President of the Republic of Kenya, Mwai Kibaki. The latest Luo-Kikuyu pact that will ensure Raila’s victory in the next general election was not easy to detect. Kibaki was not quite prepared to go public about the agreement. Publicly, therefore, he talked about the need of unity between all Kenyans, including Luos and Kikuyus, to bring about progress and prosperity in the country. He remained extremely noncommittal when the Luo elders openly asked him to make a solemn undertaking to support Raila’s candidacy in 2012. All he could say publicly was the need for the two communities to cooperate. But examining what Kibaki really said in details clearly indicated he meant much more than what came out of his mouth.

These are the exact words of the de facto Kikuyu leader: “We have always worked together, even before independence. And each time we have worked together, Kenya has done well. Every time our two communities have fallen apart, Kenya has suffered. I appeal to you that we work together for the sake of Kenya.” Nothing could be clearer than that. The Luo elder’s request had been positively fulfilled in Kibaki’s usual diplomatic manner. Any Tom Dick and Harry could read between the lines. Those with Presidential ambitions and were planning to oppose Agwambo in 2012, were extremely disappointed. Among the most disappointed politicians was Uhuru Kenyatta who thought he was being groomed by Kibaki to step in his shoes. That is why, Uhuru and many who think like him, believe he was appointed Deputy Prime Minister and the Minister for Finance.

As a seasoned politician, Kibaki knows the country cannot accept another Kikuyu politician to become the fourth President of Kenya. The support for Raila was therefore not only inevitable but a guarantee that a son of an old political friend, Jaramogi Oginga Odinga, will take over the leadership of the country and continue to protect his vast property acquired during his eight years as the nation’s number one boss. When Kibaki was a young man, fresh from Makerere University, where he was lecturing on economics, he became the first Executive Officer of the strongest freedom movement which had just been formed – the Kenya African National Union. In that position he became the political protégé of the dynamic Jaramogi Oginga.

Though powerful, Kanu of that time had its own political problems. The party was polarized by the Cold War with Tom Mboya championing the Western political ideology and Jaramogi coming out openly as a Socialist who is on record saying “Communism is food!” He openly received financial assistance from the Chinese and other Communist countries in Eastern Europe when Tom Mboya was also openly getting assistance from the American controlled labour movement ICFTU. The party was therefore torn apart between its President James Gichuru and Tom Mboya on one side and Jaramogi Oginga Odinga, Bildad Kaggia, Pio Gama Pinto and J. D. Kali on the other side.

Socially Kibaki was closer to Tom Mboya than to Oginga Odinga. Though Mboya was technically Kibaki’s boss as the Party’s Secretary General, the two ware always chasing girls and drinking together at the Africa Club , which was the only bar in the middle of the city that allowed Africans to enjoy themselves. Almost every weekend the two young men were dancing with their girlfriends at the club. Kibaki was with a beautiful girl from Nyeri called Lucy and Raila had an even more beautiful one called Pamela who was the daughter of a Member of the Legislative Council, Walter Odede. The friendship was so strong that Kibaki became Mboya’s best man when he married Pamela.

Raila’s father, Jaramogi, was the party’s Vice President so he too was Kibaki’s boss. As the Executive Officer his office was next to that of the Vice President’s and officially he was always close to him. Politically therefore, Kibaki could be said to be closer to Raila’s father. He was therefore absolutely right when he said the cooperation between the Luos and Kikuyu started long before independence. Today’s cooperation is likely to be even stronger as it is also backed by Luhyas under Musalia Mudavadi’s leadership. Uhuru’s worry about Raila-Kibaki cooperation was not only caused by Kibaki’s new collaboration with Raila but also by the fact that he is lumped together with William Ruto in the KNCHR report, which means the two may be prosecuted together as masterminds of the post election violence. Ruto and Uhuru have therefore become political birds of the same feathers and they may be flocking together either in jail or running mates in 2012. Because of his long standing enmity with Raila, Kalonzo Musyoka may join this group with the hope of being sponsored the team’s next Prime Minister.

The Ruto-Uhuru alliance is likely to bring together the Kalenjins and 25 percent of Kikuyus from Kiambu and Kambas. The 75 percent of Kikuyus from Muranga, Nyeri and Kirinyaga are likely to support Raila’s candidature with Musalia Mudavadi as his running mate. This team is likely to sponsor Martha Karua as the next Prime Minister. Needless to say Raila’s team will get a landslide victory making Agwambo the fourth President of the Republic of Kenya.

Kiplagat’s TJRC shouldn’t replace ICC

Kenyans are about to witness a massive political tomfoolery by Mwai Kibaki. He is in a process of pulling the wool over all Kenyans and make them believe he is really doing something to bring post election violence planners and financiers to justice in the quickest possible manner. As the country was debating on whether or not the suspected culprits should be tried locally or at The Hague, he announced the names of the most highly respected Kenyans to serve in the Truth, Justice and Reconciliation Commission (TJRC) under the chairmanship of Ambassador Bethwell Kiplagat.

To an ordinary Kenyan, and to the politicians who have been named as suspects by the KNCHR, the move by Kibaki should end the debate on trials and leave the whole problem to the esteemed diplomat. This stand however must be seen as a deliberate attempt to confuse the purposes and roles of the TJRC and those of the ICC. The former institution’s main purpose is to bring about reconciliation between warring people with deep hatred and mistrust for each other; and the major role and purpose of the later is to bring to book any suspect who has committed crimes against humanity, or committed war crimes or genocide.

Kiplagat’s major responsibilities will be to heal political, economic and social wounds caused by various people who have had power in Kenya since independence. It is a formidable task which will take a long time to fulfill and should not be confused with what Luis Moreno-Ocampo is, by law, expected to do to the people who caused specific wounds after the troubled 2007 elections. The wounds are described categorically as crimes against humanity that came very close to being categorized as genocide. Though the long time healing of the wounds will depend on the task being assigned to Bethwell Kiplagat, the immediate short term solution must be solved through criminal justice and specifically the international criminal justice being undertaken under the leadership of Moreno-Ocampo.

The international prosecutor is already preparing to charge some Kenyan politicians who are suspected of masterminding the bloodbath that took place in Kenya soon after the rough elections of 2007. He is doing so because our own International Crimes Act of 2008 permits him to do exactly that. As a matter of fact those who are attempting to divert attention by claiming the problem should now be solved by Kiplagat and his team alone, for the sake of peace and stability in Kenya or whatever other reason, can be accused of obstructing Moreno-Ocampo. And doing so is a crime according to the Act’s Section 10 (1) which unambiguously says a person who willfully attempts in any manner, to obstruct, pervert or defeat the course of justice of the ICC is guilty of an offence and liable on conviction to imprisonment for a term of not more than five years.

The politicians who will jump on the appointment of the new Kiplagat team and start spreading propaganda to avoid facing Moreno-Ocampo will also be committing a crime according to the Act’s Section 10 (2) which says a person shall be deemed willfully to attempt to obstruct, pervert or defeat the course of justice if , in any existing or proposed proceedings of the ICC he – (a) dissuades or attempts to dissuade a person by threats , bribes or other corrupt means from giving evidence or (b) accepts, obtains , agrees to accept or attempts to obtain a bribe or other corrupt consideration to abstain from giving evidence . It is not beyond imagination to see Kenyan politicians campaigning against the ICC and urging witnesses to boycott the international criminal court. If they do so they will be committing a crime in Kenya and they should be prosecuted for that.

Without belittling or undermining the importance of Kiplagat’s TJRC, the newly formed institution to bring about peace and reconciliation in Kenya seems to be in a tight corner. Whereas the job it will be performing is of great significance to the peace and fraternal co-existence of all wananchi in the country, it seems not to have any legal powers to protect the people about to be prosecuted by Moreno Ocampo. I am deliberately insisting on referring to the ICC prosecutor because it looks like Kenya suspects will have no option but to go to The Hague. The only alternative is to establish a local tribunal which is internationally recognized, which means it will have more or less the same standards as the criminal court at The Hague.

History will remember Mwai Kibaki as a leader who has made a number of smart political moves. So far the smartest move has been outwitting Raila Odinga and other Kenyan leaders opposed to Daniel arap Moi in 2002. At that time he made everyone back him as the only undisputed Presidential candidate against the Moi-backed Uhuru Kenyatta. Raila’s “Kibaki Tosha” clarion call gave the Othaya MP a landslide victory. The second smart move by Kibaki, that will go down in history long after he is out of the political picture, is the appointment of a TJRC when Kenyans were unable to agree on what to do with the planners and financiers of the post 2007 election violence. He caught many people in Kenya with their pants down and made them believe an answer to the post election conflict planners and financiers had been found.

Kibaki’s move made some people wonder whether time had not come to pull the country out of the Rome Statute, which is backed by Kenya through the International Crimes Act. The majority of the people named by the KNCHR as possible suspects including William Ruto and his Kallenjin gang back this option which has a serious problem. Kenya got into the Rome Statute legal framework through an Act of Parliament and it can only get out of it by either amending or substituting that Act with some other laws. Given the recalcitrant state of mind of the majority of MPs, that suggestion can only be thrown into the dustbin of history. The Parliamentarians in Kenya seem to be more than determined to send the post election violence planners and financiers to The Hague. In doing so they will only be implementing the wishes of the people of Kenya who sent them to the Legislature.

Bethwell Kiplagat should be the fist person to explain to Mwai Kibaki, William Ruto and others who want to substitute the ICC with TJRC that his mandate does not include trying the suspects. According to the preamble of the Truth Justice and Reconciliation Act of 2008, the law was to provide for the establishment of a Commission which would try to achieve Kenya’s full potential in social, economic and political development. The preamble also realizes that since independence there has occurred in Kenya gross violation of human rights, abuse of power and misuse of office. One of the major concerns of the Act is the fact that some of the transgressions against Kenya and its people cannot be properly addressed by our judicial institutions due to procedural and other hindrances. Some of those hindrances are the economic, social and political facts that make it absolutely impossible to prosecute some Kenyans who are too powerful. They simply cannot be prosecuted locally. Among the powerful Kenyans are the people named by the KNCHR. Hence the overwhelming support by the majority of the suffering Kenyanyans for The Hague.

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Kibaki should face Moreno-Ocampo

If justice must be done in Kenya Mwai Kibaki cannot escape facing Moreno-Ocampo. He was the man in charge of the country when more than 1,000 Kenyans were brutally murdered and well over 300,000 were made homeless. The buck should stop with him. But unfortunately the country’s laws protect him so much and make him legally untouchable. That is why Mutula Kilonzo wanted to remove that protection in the new Bill he is drafting to establish an internationally acceptable legal mechanism that will seek justice right here in Kenya. Unless that protection is removed, however, justice cannot be seen to be done.

Luckily the ICC prosecutor does not depend on Kenyan laws to prosecute anyone including Kibaki. The Cabinet is therefore simply wasting a lot of time in delaying the Mutula Bill, which is backed by Prime Minister Raila Odinga and the majority in the ODM. Wise leaders in PNU support it too. The big question that needs to be answered before forces are mobilized to protect Kibaki is: What role did he play in either causing the death of 1,000 innocent Kenyans or in failing to prevent the unnecessary deaths?

According to Justice Waki the post election violence was, in part, a consequence of the failure of President Kibaki and his first Government to exert political control over the country or to maintain sufficient legitimacy as would have allowed a civilized contest with him at the polls to be possible. Kibaki’s regime, Waki maintains, failed to unite the country, and allowed feelings of marginalization to fester into what became the post election violence. He and his then Government, according to Waki, were complacent in the support they considered they would receive in any election from the majority Kikuyu community and failed to heed the views of the legitimate leaders of other communities.

That is a very serious accusation against Kibaki and it has been sent by Waki to Moreno-Ocampo through Kafi Annan. Those who don’t want Kibaki to carry his own cross are not sincere when they talk of the need for justice to be seen to be done. The good news is that no matter how long it takes, if Kibaki is guilty, Moreno-Ocampo will catch up with him sooner rather than later. If he cannot be prosecuted while in office, then two and half years, which is his remaining time in office, is not too long to wait for justice to be done.

According to the National Security Intelligence Service’s ( NSIS) evidence presented to the Waki commission the security agency, which reports to President Kibaki regularly , had been closely monitoring details of planning for and organization of attacks in Nakuru by gangs affiliated to both sides of the ethnic and political divide. With regard to the Mungiki/Kikuyu side, an NSIS report dated 18 December 2007 noted that two Mungiki leaders of the Nakuru chapter were engaging in a recruitment drive aiming at recruiting 300 new members from the Nakuru area. It was further NSIS evidence, according to Waki, that in Sachangwan trading center along the stretch of highway between Nakuru and Molo, Kikuyu and Kalenjin communities were planning to attack each other. On 9 January 2008, NSIS noted heightening of tension among the Kalenjin, Luhya and Luo communities residing in Shabab and Langalanga estates in Nakuru following speculations that Mungiki members would attack them between the 9^th and the 11^th January 2008, revels the Waki report.

Kibaki had all this information given to him by the NSIS and decided to do nothing to prevent the bloodbath. How then can he claim to be innocent? And why should some people try to protect him by claiming that he is above the law? Is he above the international law which governs Moreno-Ocampo’s ICC?

The accusation against Kibaki for apparently doing nothing while the country was heading for a civil war amounts to a serious sin of omission .But it is not serious enough for Moreno-Ocampo to issue an arrest warrant for Kibaki to answer charges before the ICC. The prosecutor is allowed by law to charge people for only three crimes which include crime against humanity, war crimes and genocide. There have been quite a number of people among Kibaki’s political enemies who have expressed the wish that he and Raila Odinga should be prosecuted as the two men who really caused trouble in Kenya after the 2007 elections. Evidence against the two men has been thin and not even Moreno-Ocampo can pin them down as the perpetrators of the post elections violence in Kenya.

It may be true that there are quite a number of people in the ODM who are now accused of plotting the violence. Some of them like the party’s Secretary General, Prof. Anyang Nyongo, are on record for calling for “mass action” that ended up in the loss of life and limb. But no one can say that the professor actually planned and financed the violence. Hence his name is not even on the KNCHR list. Those from the party who are accused of masterminding the violence in the Rift Valley are suspected of having done so as Kalenjin tribal leaders and not as ODM leaders. So as far as Raila Odinga is concerned he seems to be safe and innocent. At that time he was not the Prime Minister of the country. But the same cannot be said about Mwai Kibaki. He was the President of the country and Moreno-Ocampo may need his assistance as a witness in the cases he is preparing against some Kenyans who may be very close to the President.

The closest that judge Waki’s Report comes to implicating Mwai Kibaki is when it says his Commission received credible evidence to the effect that the violence in Naivasha between the 27th and the 30th January 2008 was pre-planned and executed by Mungiki members who received the support of Naivasha political and business leaders. Waki says that he has evidence that government and political leaders in Nairobi, including key office holders at the highest level of Government may have directly participated in the preparation of the attacks.

Central to that planning were two meetings held in State House and Nairobi. That is enough evidence to require Mwai Kibaki’s presence at the trials whether they are held in Kenya or at The Hague. The involvement of senior members of his Government and other prominent Kikuyu personalities in the planning of violence in Naivasha is explained by Waki in the following manner:.

Evidence produced by NSIS suggests that this agency was collecting information on the planning of violence in Naivasha by Mungiki members and politicians, at both local and national level. As early as 3 January 2008, NSIS had information that two former MPs of the Kikuyu community were “said to be negotiating with the outlawed Mungiki with a view to have sect members assist the community to counter their attackers” and that Mungiki members were meeting “in an undisclosed location in Nairobi with a view to carrying revenge attacks on Luos/Kalenjins traveling along Nairobi-Naivasha highway on undisclosed date.”

Kibaki could probably answer a number of questions based on that report from Waki. Since it is this report that is guiding Moreno-Ocampo in his prosecution then the Argentinean legal scholar turned prosecutor may want to know from Kibaki whether the Kenyan Head of State has ever entertained prominent Kikuyu leaders, including Mungiki war lords at State House. Many Kenyans believe that among Kibaki’s closes political friends are people who hold very high ranking positions in the Mungiki. How true is this belief by many Kenyans? Only Kibaki can answer that question and the best place for him to do so is at The Hague.

Waki has already told Moreno-Ocampo quite a lot about those who caused trouble in Kenya after the 2007 elections including some members of the ODM. The only sensible way of arriving at a just solution which Kenyans are eagerly waiting for is to face Moreno-Ocampo either here in Kenya or at The Hague. If Kibaki is one of the people who will have to face the long arm of the international law, so be it.

Trials debate tests Raila’s statesmanship

All ayes are on Prime Minister Raila Odinga. His leadership skills, and may be even his statesmanship, are under microscopic examination both locally and internationally. As Kenyans debate on whether or not the planners and financiers of post election clashes should be tried locally or at The Hague, everyone expects Raila Odinga, and not necessarily Mwai Kibaki, to come up with a solution that will satisfy Kenya and the rest of the world. This is the time when Agwambo must lead the country from the darkness of disagreement and divergence to the light of harmony and conformity. To achieve that goal he has to make very tough decisions that will have far reaching consequences not only to the country but also to his own political party ODM.

The first test that the Prime Minister must pass is to convince everyone that Mutula Kilonzo’s Independent Tribunal Bill is most suitable unaltered. For the second time in a week the Cabinet is still torn apart on this issue. Those who want the Bill amended to give Mwai Kibaki powers to forgive the guilty, or to allow the Attorney General to enter nolle prosequi in order to protect some accused leaders during the trial, or give the Chief Justice powers to transfer uncompromised trial judges, have an axe to grind.

They want the Bill diluted to get off the hook. Most of them were named by the KNCHR as people who plotted and financed the post election murders; but the Prime Minister must not hesitate to confront them and openly tell them to defend themselves in court, if they are as innocent as they would like everyone to believe. Among the accused people are very important ODM leaders whom Raila must be in a position to discipline fearlessly.

If the Cabinet rejects Mutula’s Bill it will mean that the Prime Minister and the President are not able to control members of their own parties.This uncalled for eventuality seems to be facing the country now and the two principals should quickly reshuffle the Cabinet and keep only loyal Ministers in it. After all a divided Cabinet has been the main cause of all political troubles in the country and the sooner the two leaders learn the techniques of using their constitutional powers to enforce collective responsibility the better it will be for the whole country. No one, whether in the Cabinet or outside it, should be allowed to hold the country to ransom to fulfill their personal political ambitions.

If and when the Cabinet accepts Mutula’s Bill then both Kibaki and Raila will have to show that they control their various political parties and can make their chief whips mobilize Members of Parliament to back important legislations. If, and this is a very big if, the Cabinet does not amend Mutula’s Bill there will be no reason for Gitobu Imanyara and his group to oppose it when it eventually ends up in Parliament. The eagerness by the majority of MPs to push the trial to The Hague is meant to make sure that justice will not only be done, but will manifestly be seen to be done. In the unlikely event that Mutula’s Bill surprisingly goes through Parliament then every step will have been taken to make sure Imanyara’s goals are achieved.

The major obstacle that will make the Bill to be rejected by both the Cabinet and the Legislature will come from William Ruto, Franklin Bett, Dr. Sally Kosgey, Henry Kosgey , William ole Ntimama, Najib Balala and Uhuru Kenyatta who have all been named by the Kenya National Commission on Human Rights (KNCHR) as the people who instigated the clashes that saw the death of 1,000 Kenyans and displaced over 300,000 others.

When, hopefully next week, the Bill goes though the Cabinet and ends up in Parliament it will face vehement opposition led by Elizabeth Ong’oro, Kabando wa Kabando, and Ramadhan Kajembe, who are also named by the KNCHR. MPs who will be up in arms and will do everything to make sure the Bill fails to go through will include Chris Okemo, Peter Mwathi, John Pesa, Anyanga Omondi, Marger Lagat and Fred Kapondi who are also on the KNCHR list.

This opposition to the Bill will be a direct challenge to Raila Odinga’s leadership. If he is the statesman Kenyans believe he is, he will not let down over 1,000 innocent wananchi who lost their lives for trying to exercise their political rights. Killing people because they belong to a certain political party is denying them the most fundamental first generation human rights which are enshrined in the International Covenant of Civil and Political Rights. These rights made the Prime Minister’s father, Jaramogi Oginga Odinga, spend years behind bars in their defence. As a statesman Raila should not abandon truth and justice in defence of a few individuals who claim to be in trouble because of fighting for him. Raila’s ODM happens to be the most powerful party in Parliament and if he is the real undisputed leader of the party then he should make sure the Kilonzo Bill goes through, no matter whose sensitive toes he has to step on.

Raila’s leadership qualities will be tested even more in his political party ODM. The party Chairman Henry Kosgey and one of its Deputy Leaders, William Ruto, are on the KNCHR list. They hold those top positions in the party because they are Kelenjin leaders and they claim without them the entire tribe will pull out , weakening the ODM in the massive Rift Valley.

As a statesman Raila Odinga must be in the forefront of those struggling to see the end of tribal political parties or political parties made up of tribal groupings and parochial nationalism in Kenya. Indeed the accusation against the ODM Rift Valley leaders is that they mobilized their tribes to slaughter Kikuyus after the 2007 elections. The Kelenjins fought the Kikuyus to get back their ostensible land and not to boost Raila’s political image. The party Raila leads must be strong enough to kick out Ruto and Kosgey if they were involved in any criminal activity. The party’s popularity in the Rift Valley should not depend on Ruto and Kosgey. It should depend on its principles, which should be far above the idea of collecting a bunch of tribal chiefs together.

That may be easier said than done; but as a statesman Raila should lead this nation in getting rid of ethnic political parties that have been responsible for the spread of xenophobic nationalism in Kenya. It is this parochial chauvinism that has been responsible for the bloodbath that has been the same in Kenya election after election. The other two people who will be hard to kick out of the ODM will be Ramadhan Kajembe and Najib Balala from Coast Province. The two MPs believe without them the ODM will be unpopular down at the Coast. Nothing could be farther from the truth and Raila should know that fact. His statesmanship will depend on showing the people of the Coast, who are among his strongest supporters, that he is above tribal clusters within the party. The city of Mombasa today is Kenya’s best example of how Kenyans can integrate and live together as citizens of the same nation. Kajembe and Balala must not be allowed to pull them apart.

There is only one PNU man, Uhuru Kenyatta, who was named by the KNCHR as a suspect, and because the party has so many presidential candidates in 2012, many PNU leaders are looking forward to Uhuru’s departure from the political scene at that time. If he will then be in jail , he can only harmelssly end up being a Kikuyu hero who will not block their way to State House. Uhuru himself loves the idea of going to jail on behalf of the Kikuyus. That way he will truly be walking in his father’s footsteps and as the undisputed leader of the largest tribe in Kenya, State House will then be his sooner or later. After all he is still a young man. That, however, remains to be seen.

KNCHR’s list lifts the ICC lid

The secret is now out and the names in Waki’s envelop have been exposed by the Kenya National Commission on Human Rights (KNCHR).The list includes seven cabinet Ministers, three Assistant Ministers and seven MPs. Naturally they will all deny having anything to do with the post election violence that led to the death of over 1,000 Kenyans and the displacement of 300,000 others. The fact that their names have been mentioned by the country’s most respected human rights organization means they are implicated, at least as suspects, and the chances are that the ICC’s list of suspected post election plotters of mass murders will contain the same names. After all, the KNCHR has been conducting investigations in Kenya well before the 2007 elections and they have been forwarding their results to Moreno-Ocampo’s office. What Kenya’s expect from all the people named is their immediate resignation. If they fail to resign then Kibaki and Raila must show them the door as the people expect them to do.

From the Cabinet the human right body named the Agriculture Minister, William Ruto, the Road Minister, Franklin Bett, the Higher Education Minister, Dr. Sally Kosgey , the Industrialization Minister, Henry Kosgey , Heritage Minister, William ole Ntimama, Tourism Minister, Najib Balala and Deputy Prime Minister and Minister for Finance Uhuru Kenyatta. The Assistant Ministers named are Elizabeth Ong’oro, Nairobi Metropolitan, Kabando wa Kabando, Youth and Sports and Ramadhan Kajembe, Environment. The public servants named are Police Commissioner Hussein Ali and administrators Paul Olondo, Grace Kaindi and Peter Kavila. Members of Parliament named are Chris Okemo, Peter Mwathi, John Pesa, Anyanga Omondi, Marger Lagat and Fred Kapondi. Former MPs named are David Manyara, Nakuru, Jayne Kihara, Naivasha, Njenga Karume, Kiambaa and Moses Cheboi, Kwesoi. The businesswoman named is Mary Wambui.

The exposure by the KNCHR will be greeted by congratulations to the human right body by the majority of the people of Kenya. But it is also likely to make many people angry, particularly those who took part in the mass murders of Rift Valley and other cruelties that took place in the Central Province and down at the Coast soon after the election results were announced. The culprits will now organize huge public rallies from where they will be expected to seek wananchi’s sympathy. They will even try to mobilize the people and make them revolt. But the masses must condemn such moves and reject them as yet another attempt to pour the poor people’s blood as sacrificial ritual to perpetuate the misrule of the rich.

The named people will go back to their clans and tribes to try and mobilize them against any trial whether local or at The Hague. No wonder the named ministers from the Rift Valley were already trying to rally the people to reject such trials by calling for a PJRC solution. But the people must remember what happened in 2007. They were misled to kill fellow Kenyans and now they are in trouble. To avoid the possibility of causing tribal warfare in the country, which is the wish of the named culprits, the people must refuse to be manipulated as political ladders and shields.

Apart from resigning from the top cabinet positions in the coalition Government, the named people must also be kicked out of their various political parties regardless of what positions they hold. No political party in Kenya would have been registered if it had violence as part of its policy in its constitution or manifesto. The named people will also seek refuge from their various political parties by claiming they did what they are accused of doing in order to make their various political parties win.

The culture of political violence during election time can only be ended if the people organizing such violence are made to suffer individually as common criminals, instead of being glorified as tribal heroes. Whenever they mobilize the people to fight at election time, they do so in order to win unfairly so that they can be returned to Parliament, where they are so used to collect taxpayers money, without doing any work that brings about development in the country for the benefit of the people. The only benefit they are aware of concerns their own pockets and close members of their families.

The named people should not only be kicked out of their various political parties, but they must also be made to vacate their seats in Parliament. This move should be jointly taken by all political parties led by Mwai Kibaki, Raila Odinga, Kalonzo Musyoka and Martha Karua. Kenyans must learn to reject leaders who divide the country along ethnic lines and the best example of proving that point is to refuse to do be led by people who are suspected of organizing mass murders.

Needless to say the named people must not be condemned unheard. They must be given the opportunity to brief their lawyers who will represent them either at a local tribunal to be formed soon, or at The Hague. The exposure by KNCHR seems to have been done with close collaboration with ICC. It will therefore not be surprising at all for Luis Moreno-Ocampo to also soon make his list public . The chances are that the two lists will have identical names.

The bombshell dropped by the KNCHR should make the remaining MPs to act with speed in passing Mutula Kilonzo’s Bill to establish a local tribunal. It is gratifying to note that the Minister for Constitutional Affairs has categorically said that he does not intend to dilute his draft, which has taken serious legal steps to ensure the established local tribunal will not be manipulated by the powerful. His move has been backed by all the Western diplomats because they have seen no loophole in it. The stand taken by the diplomats means the named people are really cornered. Very soon too their secret accounts in banks in the Western countries will be frozen and their children who are studying in those countries will be sent back home. Short of facing the law and defending themselves in law courts, they will have nowhere to run to. The wananchi, therefore, must reject them too.

The Government of Raila Odinga and Mwai Kibaki must also step in and confiscate the passports of the named people. They must also be given 24 hours police protection to prevent them from being harmed by anybody. This will make the police prevent them from running away from the country. Naturally there are a number of countries run by dictators ,who are also on the wanted list of the ICC, who will be ready to give them political asylum. These steps taken by the Government, political parties, Parliament and the people of Kenya against people suspected of planning mass murders will serve as a lesson to those who may want to emulate them in future. Kenya should not have time for leaders who do not respect the lives of the people they lead.

Kenyan journalists may face tribunals

When Moreno-Ocampo starts prosecuting Kenyan plotters of the post election violence, some journalists’ names may appear among the accused. May be the journalists’ names are not in the Waki envelop, but they are certainly among those who will be tried together with those who actually did the killings. The journalists were accused by both the Waki and the Kriegler reports for fanning tribal hatred that lead to the mass murders which followed the 2007 elections. The manner in which the Kenyan leaders are treating the post election violence issue shows clearly Moreno-Ocampo will soon start his prosecutions at The Hague. When that happens a second tribunal is likely to be established either in Kenya or in a neighboring country. The second tribunal is likely to operate along the same lines as the Arusha trials of the Rwandan massacres.

Whether the trials take place at The Hague, in Kenya or a neighboring country, the Waki and Kriegler reports will play a major role in guiding the prosecutors. According to the Kriegler report just before the 2007 elections and in their aftermath, political leaders and Kenyans at large were guilty of a truly alarming level of hate speech. The report says degrading, intimidating and inciting language targeted Kenyans on the basis of their gender, age, ethnicity, religion, socio-economic class and political views, and was aired by the media uncurbed.

According to Kriegler talk shows and call-in programs required media personnel who were versed in moderation and who were able to predict a change of tone that may lead to negative results. He explains that words and phrases such as “settlers”, “let’s claim our land”, “people of the milk to cut grass”, “mongoose has come and stolen our chicken”, “madoadoa” and “get rid of weeds” aired by Kass FM and songs such as “talking very badly about beasts from the west”, “Kiiji” and the song by Miuga Njoroge sung in Kikuyu dialect on Kameme and Inooro FM stations which implied that Odinga was a murderer, power hungry and did not care about other tribes but only his own tribe, and that Luos were lazy, they did not work, they did not pay rent and that they were hooligans, were received by Kenyans with mixed feelings.

The South African judge said the Luo stations also played a song “the leadership of the baboons” which vilified the Mount Kenya people. The solution to hate speech by the FM radio stations should, in the views of Kriegler, be found elsewhere not by banning them. Most blame was directed at those media serving the big ethnic groups. These were Kameme FM and Inooro FM for the Kikuyu, Ramogi FM and Lake Victoria FM for the Luo, Kass FM and Chamgei FM for the Kalenjin, Muuga FM for the Embu and Meru, Mulembe FM, West FM and Chettambe FM for the Luhya community, Musyi FM and Mbaito FM for the Akamba and Egesa FM for the Gusii.

Krieglier expressed a major concerns directed at their popular talk shows such as “Baraza”(informal assembly) for Ramogi FM, “Just say it” for Lake Victoria FM, “Hagaria” (sharpen) for Inooro FM and “Arahuka” (Wake Up) for Kameme FM. Even from the titles of the programme, the South African observed, allowed one to sense that the message was bound to be divisive. These programmes, according to him were aired raw and were moderated by persons who had no training and skills in managing such shows, some having been recruited merely because they were entertaining or attractive.

Though Kriegler concluded that the solution was to have trained personnel managethese shows and control the contents of the message broadcast for public consumption, Moreno-Ocampo may not think so. According to the Argentinean prosecutor the journalists committed an offence against humanity and they should be prosecuted.

Kriegler said several FM stations were allegedly owned by politicians and the responsibility for these unacceptable broadcasts could be enhanced by lifting the veil on ownership of such media. Though Kriegler suggested that the subject of hate speech should be explored substantively in the constitutional review debate by all stake holders, he had quite a number of observations to make about the media and journalists as they covered the 2007 elections.

The Kriegler Report is not the only one that points an accusing finger to journalists. The Waki Report too does more or less the same thing . According to Waki before, during, and after the elections, politicians, government, NGOs, members of the media itself, and parts of the public, all had views about whether and how the spread of information through the print and broadcast media had contributed to the 2007 post election violence. Waki says his Commission asked a number of individuals to testify before it concerning the role of the media in the post election violence.

He explains that his Commission therefore invited the Permanent Secretary from the Ministry of Information and Communications, the Attorney General, and the Chair of the Editors’ Guild, who also was the Managing Editor of the Nation Group, to testify before it to solicit their views. Furthermore, a number of members of the public who were victims or witnesses to the post-election violence outlined their experiences to the Commission both in formal testimony and in other statementsto its investigators, says Waki.

According to the Kenyan respected judge many recalled with horror, fear, and disgust the negative and inflammatory role of vernacular radio stations in their testimony and statements to the Commission. In particular, says Waki, they singled out KASS FM as having contributed to a climate of hate, negative ethnicity, and having incited violence in the Rift Valley. However, the judge explains, there were also similar complaints in other parts of the country even though they did not come directly to the attention of the Commission.

These, according to Waki, included the vernacular music and negative ethnicity allegedly coming from Kikuyu FM stations including Kameme, Inooro, Coro, and others in other different parts of the country. This was mentioned critically in various sections of Exhibit no. 125, the KNCHR’s report on Kenya’s post 2007 election violence. With all this evidence against the journalist, it is inconceivable that Moreno-Ocampo will leave them alone.

Cabinet bickering brings ICC closer

The disagreement among the Kenyan Ministers has strengthened the hand of Moreno-Ocampo. It is now clear that the perpetrators of the post election mass murders are facing The Hague. This is rather sad because there was absolutely nothing wrong with Mutula Kilonzo’s Bill, which had taken care of all the obstacles which would have made it fail to function. In the Bill Mutula had set standards that the ICC would have had no reason to reject. He also made sure all the criticisms of local MPs were put into consideration while drafting the Bill. Mutula was on his way to both local and international fame when the usual Kenyan tug-of-war hit him so hard that he began to feel the heat that made Martha Karua call it a day.

To begin with the new Minister for Constitutional Affairs made sure his draft removed Presidential immunity from post election prosecutions. If Mutula succeeded in making this part of the Bill accepted to all, Mwai Kibaki, if it was proved he was implicated in plotting the post election murders, would have faced the local tribunal in the same manner as any other culprit. This proposal, of course, would be accepted over the dead bodies of the Gema Cabinet Ministers such as Kiraitu Murungi (Energy) John Michuki (Environment) and George Saitoti (Internal Security). They therefore vehemently opposed Mutula’s suggestion because they cannot imagine their boss going the Charles Taylor way. Very strangely the Minister for Foreign Affairs, Moses Wetangula, took the same stand in an obvious effort to protect his job.

Mutula also suggested in his Draft Bill to remove Presidential powers to pardon convicted criminals. One of the most disappointing aspects of criminal justice in Kenya is the fact that the President can pardon whoever he wants, even after he or she is found guilty in a court of law. This is the one phenomenon that angers MPs and makes them go for The Hague rather than the local tribunal. At The Hague Kibaki would have no powers to forgive anyone found guilty; and in Kenya he would pardon all the PNU politicians facing the jail after local trials. It is not farfetched to imagine Kibaki forgiving everyone “for the sake of national peace and stability”. This move of forgiving and forgetting the post election atrocities that saw the death of over 1,000 Kenyans and the displacement of over 300,000 people is backed by Ministers Najib Balala and William ole Ntimama.

Mutula’s third suggestion in his Draft Bill suggested that the Attorney General should not enter his notorious nolle prosequi on cases against the accused likely to appear before a local tribunal. This business of nolle prosequi has reduced courts in Kenya to Kangaroo status and made them a laughing stock internationally, where Kenyan justice is a matter of jokes against Africans’ incapacity to arrive at justice through a legal process. Every time an important man or woman is charged with a serious crime the Attorney General notoriously enters his nolle prosequis and makes the accused people walk freely out of courts. The one case Kenyans will never forget is that of Lucy Kibaki who criminally attacked a journalists and yet Attorney General did not have the guts to prosecute the First Lady who is not above the law. Yet when the journalist concerned prosecuted Lucy, Wako was at the court to enter a nolle prosequi.

Fourthly Mutula suggested in his Draft Bill that the Chief Justice should not transfer a judge attached to the tribunal. One of the most laughable aspects of justice in Kenya concerns the manipulation of judges to defeat justice. Every time a case is before an incorruptible judge he or she faces a possibility of being transferred to give room to a corrupt judge, who would bend the law to suit the highest bidder. Mutula knows all these tricks because he was in legal practice for many years. To make the Kenyan tribunal strong and acceptable internationally he removed that huddle which can only be detected by sharp legal minds like the Minister's. Unfortunately the Ministers at the Cabinet did not agree with Mutula because quite a number of them know they will probably be appearing before a local tribunal whose tough judges would then not be able to be transferred as and when the accused bosses want.

The fifth step taken by Mutula while drafting his Bill concerns injunctions against tribunal proceedings. In Kenya justice is always delayed when big bosses are charged with criminal offences of corruption. All they do is to seek injunctions against the proceedings of their cases making sure justice will always be denied. Many of the top bosses in Kenya steal public funds quite assured that courts can do nothing to them. That is why Kenyan Parliamentarians, and indeed the ordinary wananchi, have lost all confidence in local courts. One of the most notorious misuse of injunctions concerns Goldenberg cases of Kamlesh Patni who has become a multi billionaire as a result of stealing money from the treasury and yet the Kenyan courts have not been able to lay a finger on him – all due to injunctions.

Realizing that he who pays the piper calls the tune Mutula’s Draft made sure the local tribunals would be financially independent. The sixth step he took, therefore, suggests that the tribunal should get its funds from the Consolidated Fund. This would keep the tribunal away from the Judiciary and make it so independent financially that no one could accuse it of being an instrument of international manipulation.

Anticipating that the ICC may move in Kenya to try those who committed international crimes after the 2007 elections, Kenya passed Cap 16 of 2008 which is also known as the International Crimes Act. Among other things the Act makes provision for the punishment of certain international crimes, namely genocide, crime against humanity and war crimes. It enables Kenya to cooperate with the International Criminal Court established by the Rome Statute in the performance of its functions. The act however has a major weakness as it exempts crimes committed before the bill was legislated passed into an Act. This means the Kenyan Act as it stands today cannot punish the post election criminals of 2007 who cannot be prosecuted. Mutula’s Draft takes care of that problem as it suggests crimes prior to the operationalization of the Act to be tried.

To make sure that the local tribunal will have the acceptable international standards Mutula recommended in his Draft that one third of the judges would be foreigners. The rejection of Mutula’s Draft by the Cabinet showed that Kenyans are divided into four groups on this issue of post election trials. The first group is made up of people like Mutula who believe in the establishment of a proper internal tribunal that would satisfy Kenyan wananchi, MPs and the international Community. This group backs Mutula’s draft and it includes James Orengo and, surprisingly, the Attorney General, Amos Wako. In a rapidly changing political scenario in Kenya this is the group that Raila Odinga, backed by the international community, may support. Eventually this will be the stand backed by the ODM.This original Mutula Draft may be the one Parliament eventually accepts.

The second group is made up of Kalenjin politicians led by William Ruto backed by Henry Kosgey and Sally Kosgey. This group wants the case to go to The Hague with a bigger charge sheet that would include Raila Odinga and Mwai Kibaki as people who caused the crimes against humanity committed in Kenya after the 2007 elections. Ruto argues that the trial of important political leaders in Kenya would cause more serious uprisings. Most Kalenjins dangerously agree with him. The wise ones don't.

The third group is made up of Gema politicians who believe Kibaki’s powers to interfere with the trials and to forgive whoever is found guilty must not be tampered with. In this group are to be found Ministers George Saitoti, Kiraitu Murungi , John Michuki and strangely, Moses Wetangula. A very big part of PNU may back this group.

The fourth group is made up of Kenyans who believe in a solution through Peace ,Justice ,Reconciliation Commission (PJRC). In this group is to be found ministers Najib Balala and William ole Ntimama and another group of the PNU followers. All in all the country is really torn apart on the issue of post election trials of international criminals among Kenyan leaders. But as the Kenyan leaders continue to argue, Moreno-Ocampo’s case gets better. And the man is ready.

Exposed Kenyan leaders must resign.

Moreno-Ocampo has threatened to expose the names in the Waki envelop. If and when he does so the named people must resign from public office and give the ICC time to investigate them further before prosecuting them. But William Ruto is trying to politicize the ICC. He is playing an extremely dangerous game which is likely to boomerang badly and knock him out of the political scene in Kenya all together.

He claims Kenyan pending cases against suspects of post election violence instigators should be preceded by prosecutions of those who stole the elections and caused the violence. To anyone who understands Kenyan politics, Ruto’s is trying to get the sympathy of the Kalenjin people and make them revolt if and when he is arrested to face the law at the international court. Ruto is behaving as if he believes his name is in Waki’s envelop.

The manner in which Ruto repeatedly keeps on referring to the ICC means he has done a lot of research about the court and he must know that the court was established to try international crimes such as those committed in Kenya soon after the 2007 elections. Failing to conduct a free and fair election is not among the “crimes against humanity” which the court is supposed to try. Mass killing, for whatever reason, is an international crime. Claiming that the mass killers of the post election victims should not be tried before the organizers of the sham elections which caused the conflict is deliberately failing to see the reasons for the creation of the ICC.

Ruto has been appearing in public meetings dressed up as a Kalenjin warrior complete with a spear and a shield. The symbolism of this is clear – that the Kalenjin people are being victimized by the ICC. The intention is also absolutely clear – that if ever he is taken to The Hague, then the whole Kalenjin community will be on trial and they should therefore rise up in arms and defend their rights. That similar incitement is what led to the post 2007 election bloodbath. If ever Ruto ends up at The Hague, his current behaviour can always be used as further evidence against him. This will be the most terrible boomerang of attempts to politicize of the ICC.

According to Ruto there should have been another envelop with the names of those who, in his opinion, stole the election. He calls the fictitious envelop the “Kriegler envelope”. Judge Johann Kriegler was mandated to probe the 2007 elections but he never favoured anyone as the winner of the said elections. He however accepted that something serious went wrong during the counting and tallying of votes. It could have even been the cause of the problems.

According to Judge Kriegler the Counting and tallying during the period 27-30 December 2007 and the announcement of individual results were so confused – and so confusing – that many Kenyans lost whatever confidence they might have had in the results as announced. He went on to elaborate that rumours of rigging and fraud during the counting and tallying process spread like wildfire, and the consequences were tragic. This however did not constitute an international crime and Ruto will have a very hard time to convince the ICC to accept his theory.

So far the result of the Ruto outcry has been to fan the fires of tribal animosity which have succeeded in scaring the witnesses who could have helped the ICC. If any of the witnesses who are said to be running away from Kenya at the moment, end up giving evidence at The Hague they may not have anything good to say about William Ruto’s behaviour now. Kriegler went further to discuss what he called “the integrity of the counting, tallying and result announcement system”. He said this referred to systemic safeguards, which aim at reducing the need for personal integrity. It might even be argued, he said, that systemic integrity is what separates acceptable management, and therefore safety, from disaster.

He went on to explain that while integrity is necessary at all stages of the electoral process, nowhere is it more important than in counting and tallying. To maintain integrity, vote counting must produce results that are, and are seen to be, valid and accurate, and therefore acceptable to all stakeholders. That is about all that the Judge said about “stealing” election. He never talked of any international crime being committed by anyone while “stealing” the election. Neither did he talk of any possible secret envelop containing the names of those who stole the election. To him stealing of an election was a matter of integrity and not international crime.

The subject of who won the election was so controversial that Kriegler avoided it all together in his report. If the announcement of Kibaki as the winner angered some voters then their rage would have manifested itself in different type of protest against the authorities rather than an attack against an entire community in the Rift Valley. The attack looked like the result of a well planned assault which was organized by some very evil people. The ICC will come out with the truth which will satisfy all Kenyans particularly the victims of the criminal attacks.

The ICC is not an election court. When Kenya was stuck into the political quagmire caused by the election dispute between Kibaki and Raila only an international intervention could solve the problem. They sent Kofi Annan to do so. Among the first steps he too to bring about peace in Kenya was the establishment of the Kenya National Dialogue and Reconciliation (KNDR) of which Ruto played a very important role.

Among its goals was to resolve the political crisis arising from the disputed presidential electoral results as well as ensuring peace returned to Kenya. At that time, which was early February 2008, the concern was to save Kenya from total collapse. Annan helped us form the coalition Government and then other steps of examining what went wrong and what should be done to remedy the situation were taken . Judge Kriegler was asked to examine what went wrong and Justice Waki was asked to recommend what should be done about it.

It is Waki who discovered very serious crimes were committed in Kenya. He identified the suspected criminals and recommended trials through ICC when everything else to arrive at justice in Kenya fails. He behaved as if he knew Kenya could not try the post election violence instigators in a just manner. He also knew nothing could succeed in establishing local tribunals. He also knew the corruption in the Kenyan Judiciary. In his knowledge was the fact that Kenyan Judges cannot conduct fair trials independently. Hence his recommendation for the usage of the ICC. If Ruto really wants to help on this matter he should go to the ICC and do so.