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.
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