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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