Kenyan Tribunal Pledges Questioned

In the wake of the decision by the International Criminal Court, ICC, to charge six Kenyans in connection with Kenya's post-election violence three years ago, serious doubts have been expressed about Nairobi's professed willingness to try others implicated in the troubles.

On December 15, ICC prosecutor Luis Moreno-Ocampo requested that six Kenyans appear in The Hague to answer charges of crimes against humanity, committed during the bloodshed that erupted after the alleged rigging of national election at the end of 2007.

The suspects are William Ruto, minister of higher education (presently suspended pending an investigation into allegations of corruption); Henry Kosgey, ex-minister of industrialisation (who announced his resignation following publication of the charges); Joshua Sang, a radio presenter; Francis Mathaura, chairman of the National Security Advisory Committee; Uhuru Kenyatta, deputy prime minister; and Mohamed Ali, former commissioner of Kenya's police force.

In March 2010, the ICC decided to probe the post-election violence, having concluded that the country was "unable or unwilling" to investigate and prosecute the perpetrators.

Now that the court has charged the alleged top-level suspects, it has indicated that there are unlikely to be further investigations.

"It is a Kenyan decision who else to investigate," Luis Moreno-Ocampo told journalists in The Hague. "There are many more. We have only charged those that are [allegedly] most responsible."

But a question remains. If Kenya was considered so reluctant to cope with investigations into the disturbances three years ago, has anything changed to make the world think that the country is now committed to stamping out impunity?

In the past, Kenya's judiciary has been widely criticised for being a tool of the political elite. Even now, despite calls for the country to hold its own inquiries into the post-election violence, serious doubts remain over the efficacy of the judiciary.

"When the ICC came in, we easily met the qualifications that we were both unable and unwilling to prosecute," said Priscilla Nyokabi, head of Kituo Cha Sheria, an organisation that promotes access to justice for marginalised people. "Where we were able, we were completely unwilling to prosecute the [alleged] perpetrators of post-election violence."

These are sentiments shared by Paul Muite, a prominent constitutional lawyer and former member of parliament for the Kabete constituency in central Kenya.

"Our position is that we currently have no judiciary to talk of because, for the last three decades, we have been destroying it," he said. "We have appointed the wrong people to the judiciary. We have instilled a culture of corruption. It is going to take a long time to restore the judiciary so people can start to have faith in it again."

Both Nyokabi and Muite feel that, given the shortcomings of the judicial system, it will be exceedingly difficult to set up a local tribunal for the time being - although neither rules out the setting up of such a body in the future, as long as the country's judicial reforms proceed as planned.

"Steps could have been taken, but local people have all been hearing for three years now that steps will be taken to end impunity, and nothing much has changed," Nyokabi said.

Muite added, "We need to set up a special tribunal for Kenya of course. Ultimately, it is for the Kenyan people to get their house in order. We cannot be dependent on foreigners, but before we get there we definitely need intervention from the international community."

For its part, the Kenyan government rejects claims that it is unwilling to bring alleged perpetrators of the violence to justice.

Addressing parliament shortly after the ICC issued its charge, Prime Minister Raila Odinga promised judicial reforms and underscored the government's support for an "independent and credible tribunal" that would aim to complement the work of the ICC.

Proponents of the ICC in Kenya argue that the decision of the international court to get involved in the justice process was the right one, since it has given a renewed impetus to a judicial reform process, which has been stagnating.

"The ICC has done a lot in terms of single-handedly reining in the culture of impunity in Kenya," said Ken Wafula, a prominent human rights activist in the eastern town of Eldoret, which was one of the flashpoints of the 2007 violence. "The message is that if you do anything stupid - if you kill another person, if you do anything to breach the rights of others - then the world will come for you."

Ever since the emergence of multi-party democracy in Kenya in the early Nineties, national elections have been marred by disturbances, but Wafula now believes the ICC has put an end to that.

Wafula cited the constitutional referendum on August 4 last year, as an example of the progress, he believes, has been made. He said that, despite widespread predictions of violence, the poll was held peacefully and democratically, precisely because the shadow of the ICC was hovering over the country at that time.

"I told people we would have a peaceful referendum and there would be no violence," Wafula said. "I also told people that, even if Moreno-Ocampo [charges alleged perpetrators of the 2007 violence], nobody would go on to the streets or start fighting again. I'm now sure that [the ICC charges] will contribute significantly towards a peaceful election."

Although every national election in the last 20 years has seen some degree of violence, the killings that followed the 2007 poll were widely regarded as the worst. It prompted both domestic and international calls for a decisive response to avert a repeat of the trouble in 2012, when the country next goes to the polls.

A commission of inquiry, led by Philip Waki, a prominent Kenyan judge, was set up.

The commission proposed establishing a special tribunal, comprising both international and Kenyan judges, to investigate and prosecute those deemed most responsible for the violence.

If the tribunal were not set up within a specific timeframe, then a list of chief suspects would be passed to the ICC.

Parliament twice rejected amendments to a bill authorising the creation of a tribunal, which had been drafted by legislator Gitobu Imanyara.

Frustrated by the slow progress of the proposed legislation through parliament, the government decided in July 2009 to shelve the bill, insisting instead that tweaking the existing judicial system would be sufficient to prosecute those suspected of responsibility for the 2007 violence.

Moreno-Ocampo concluded that the Kenyan government wasn't really serious about justice, and promptly opened his own investigation into the killings.

Now that the ICC has named six suspects, there's been talk of resurrecting the tribunal proposal, in order to try other alleged perpetrators.

However, questions remain about how committed the Kenya government is to this endeavour, or whether it is simply an attempt by the ruling elite to head off further investigations by the ICC.

"I just think this is another round in the game that has been played all along. Every time they get put under pressure, they pretend the tribunal is just a couple of days away. They use this as a kind of brinkmanship," David Anderson, a professor of African studies at Oxford University, said. "It is the classic thing in Kenya that you can do anything you like - you can pay for everyone's education, you can pay for all their healthcare - but try and affect security and the judiciary and you're damned."

Christine Alai, a programme officer with the International Center for Transitional Justice, ICTJ, in Kenya, also doubts how committed the government is to a tribunal. She says that one of the key obstacles is a lack of political will.

"I do not see the internal tribunal being in the present circumstances [a] credible [prospect], but this isn't to say that we shouldn't have one," she said. "Initially, parliament rejected a special tribunal. Then, when a new bill was introduced, cabinet rejected it. If one wants to look at the genuineness of the government right now, one would have to bare this in mind.

"At the moment, the jury is still out on whether the government will live up to its word, so that not just the six but other [alleged] perpetrators face justice."

Alai adds that, even if the political will is there, there will still be some technical difficulties to overcome, such as making sure investigations are done competently and ensuring the safety of witnesses. What's also unclear is the extent to which foreign judicial personnel would be involved.

"We have many people who are well educated in terms of international law, so we do not really lack personnel," James Aggrey Mwamu, the vice-president of the East Africa Law Society, said. "What we need is some technical support to help get things going, and also financial aid. A local tribunal is very expensive, because of the kind of people that will be tried and the nature of investigations."

Although many commentators agree that some foreign support is needed, there is little appetite for the kind of hybrid mechanism that has been seen in other places, such as Sierra Leone.

"I am not sure this is what Kenya needs," Alai, from ICTJ, said. "The angle that we should be leaning more towards is the initial bills that have been proposed by [the government], which just suggested to have [some] foreign judges and a foreign investigative wing."

Clues as to the shape that foreign support could take come from Uganda, just over the border, which has its own experience of setting up a special war crimes division of its own court system.

James Ogoola, chairman of the country's Transitional Justice Working Group, says that the process could have been smoother if the ICC had been able to offer more assistance.

"When I was in The Hague, we had some discussions and we were told that [the ICC] is not a donor body - this is not within their mandate," Ogoola said.

David Donat-Cattin, director of the law and human rights programme at Parliamentarians for Global Action, explains why.

"[The court] operates as a judicial body, so it is reasonable to expect cooperation between prosecutors. It is not for the court to [develop local judicial bodies]. This type of development assistance project, in the framework of the rule of law, is something that is more appropriate for development agencies, such as those operating under the authority of the United Nations, the European Union or the African Union."

The year ended without any firm decision being reached about reintroducing the special tribunal bill to parliament. Instead, the final week of parliamentary work before Christmas was taken up by considering whether to withdraw from the ICC altogether.

Some observers believe Kenya's true attitude towards impunity will come when the ICC requires the government to hand over the suspects it has charged.

"The crunch time comes when the six [ICC suspects] are asked to board a plane to The Hague. If those six individuals don't get on the plane, then what happens next? That is Kenya's very dangerous moment," Anderson of Oxford University said.

Blake Evans-Pritchard is IWPR's Africa Editor; Simon Jennings and Katy Glasborow are IWPR reporters in The Hague.