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.