Hillary’s ICC warning rocks Kenya

Luis Moreno-Ocampo couldn’t be happier. His work has been made a lot easier by the American Secretary of State, Hillary Clinton, who visited Kenya and stirred up debate about the trial of the suspected planners and financiers of the post election mass murders. No sooner did the Secretary of State jump into her plane than backbenchers, led by Gitobu Imanyara, announce a plan to introduce Mutula’s Bill, which the Cabinet had rejected, to Parliament through the back door in the form of a private members’ Bill. The Imenti Central MP told journalists his Bill had borrowed heavily from Mutula’s.

Whether Imanyara’s Bill goes through or not, it proves there is a major rift that has developed between Parliament and the Cabinet. MPs seem to have their ears on the ground and their eyes on their constituencies. Many of them now know the Cabinet in Kenya is as unpopular as George Bush was at the end of his term. The reason for its unpopularity is the stand it has taken on Moreno-Ocampo’s efforts to prosecute some members of the Cabinet for plotting and financing the post election murders. The people are behind Moreno-Ocampo. And the backbenchers have joined the people with their new Bill which, among other things, also wants the planners of the post election bloodbath to face the ICC in The Hague. Few people have read the Bill, but Imanyara says he plans to put it on a special website which the backbenchers plan to launch.

All these new developments seem to have taken place when the American Secretary of State engaged Kenyans in an open debate about the trial of the planners of the conflicts. Her visit achieved many things and among them is the exposure of our MPs who have no time to discuss anything with the people they represent in Parliament. No wonder Imanyara now wants to launch a website to discuss his Bill with the people. Without Hillary Clinton’s visit that set that example, Imanyara’s move would not have been possible. Hillary has removed MPs from their artificial ivory tower and completely changed politics in Kenya.

It was all started by her candidness when she told Kenyan politicians that the International Criminal Court prosecutor was on his way to charge suspect of post election violence planners and financiers. While she was visiting Kenya to deliver the keynote address at the AGOA conference, she took advantage of her presence in the country to talk to the Kenyan politicians about the importance of prosecuting the suspects locally. But then she discovered, to her horror, that the leaders had a plan to forgive the suspects through a stage managed trial by the newly established TJRC. She had to go public and tell Kenyans that there was no way the culprits could escape the long arm of the international law.

Before she did that, she came to Kenya convinced that the Kenyan Government was making efforts to establish a local tribunal that would have given the country an opportunity to solve its own problem. Soon she discovered that the Cabinet was badly divided with some people systematically planning to make the whole post election violence forgotten through the TJRC. This group must have argued that prosecuting senior political leaders would make their followers rise up in arms. It didn’t take her long to realize the TJRC solution was being championed by some of the suspects in the Cabinet. Mrs. Clinton, therefore, didn’t buy the TJRC story. But she also realized there were some leaders in the Cabinet who wanted post election trials to go to The Hague as Kenyans had lost all respect for the local courts.

Addressing a press conference in Nairobi she said she had been told by Kenyan Ministers that there was a constitutional impediment to creating a local tribunal outside the ordinary judicial system, and that there was required to be a constitutional amendment in order to create a local tribunal, which had not passed the Kenyan Parliament. Though the Secretary of State would have preferred Kenyans to establish a credible local tribunal, it seemed there was no escaping the ICC. Then she added: “I know this is not easy. I understand how complicated this is. It’s complicated, in part, because politically how do you go about prosecuting the perpetrators without engendering more violence from those who are supportive of the positions or the affiliations of the perpetrators. So it does take a lot of political will and leadership.” Those words must have made Imanyara and his growing number of backbench supporters start thinking of hijacking the Mutula Bill, which in fact had absolutely nothing wrong with it except the unacceptable suggestion to the Gema group that the President losses his immunity when it comes to the post election violence prosecutions.

Mrs. Clinton said America continued to believe that a special local tribunal was in the best interest of Kenya, so as to avoid having outsiders determine the outcome of such trials. But she reminded Kenyans that Kofi Annan and the people working with him had handed a sealed envelope of ten names to the ICC, which had a lot on its plate. The ICC was not acting immediately, of course, because there was hope that Kenya would resolve this matter on its own, and that was certainly the American hope as well. That too made Imanyara start working on the Mutula Bill to make it provide for the use of both local tribunals and The Hague.

The manner in which the former American First Lady presented her case clearly indicated that she knew quite a bit about what was going on in Kenya. The perpetrators had followers who were probably planning to cause more trouble in the country should their leaders end up in court facing murder charges. With that knowledge in mind she obviously easily understood why the majority of Kenyans preferred the matter was taken to The Hague. The hope the Secretary of State had in wishing Kenyans to establish their own local court to try the perpetrators changed when she addressed a huge crowd at the University of Nairobi the next day. There she said she had seen a poll which indicated that the majority of Kenyans agreed with the Waki Commission which suggested that the final solution should be at The Hague. She then added: “And in my conversations, even with ministers in the government who understand how important it is to deal with this matter, they too have said that probably that is the only road forward.”

As an outsider, Mrs. Clinton said, that was not something that she could play a role in, but she thought it was important that a decision was made. And If there was not going to be a special local tribunal that had confidence of the people, then she thought the people deserved to know that someone was going to put in motion the process to hold people accountable, and it may well be that that was the ICC. It took the Secretary of State less than two days to know that Kenyans have no confidence in the courts and that the only hope of justice being done was in the ICC. After that Imanyara started the ball rolling. Soon there will really be political drama in Kenya about the trials of the post election violence planners. It is the moment Moreno-Ocampo was waiting for. Undoubtedly he is bound to strike very soon.