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Sharing the statement released by KPTJ this morning:
At this time of grief, we, Kenyans for Peace with Truth and Justice, wish to express our deepest condolences to the families of those who have been lost or remain missing, and wish a swift recovery to all those who have been hurt. We applaud the contributions of our fellow Kenyans to support rescue and security work and medical care for victims, as well as the unity our nation has demonstrated throughout this crisis. We condemn this despicable attack and support all work to rescue those still trapped at Westgate, and to end the situation as soon as possible and without further loss of life.
The Kenyan government, after years of lack of success in its various diplomatic efforts to block the ICC prosecutions of key figures in the political killings involved with the 2007-08 elections, achieved a potential breakthrough at the most recent AU meeting in Addis. By getting a section of African strongmen and politicians to agree that the ICC shoe that they had promised to wear was pinching too tightly when it was not deferring to them as Heads of State as opposed to only pursuing lessor suspects out of power, the Government of Kenya raised the stakes for those nations that advocate a law-based international order and for the ICC as the only institution that remains with any potential to substantively express any tangible disapproval of the post-election murder and mayhem in Kenya in 2007-08.
It is in this context that the ICC will have to decide whether or not to accept a panel recommendation to move the trials from The Hague to Kenya or Tanzania.
Let me say that I am no fan of the decision to locate the ICC in The Hague in the first place. Nothing against the Dutch and I do understand that The Hague has symbolism as a seat of the international law of nations. Of course the criminal trials of individuals is something quite different and if anything in some ways undercut by the association. We are confronted now with a situation in which the indictees have taken power in a member state–in a campaign initiated in the context of their defense to the ICC charges–and wish to avoid trial by mutating the individual criminal charges into a matter of the international relations of sovereign states.
So by all means move the Court to Botswana or Belize or some other more suitable location when it becomes logistically rational to do so, but these trials are supposed to be about the loss of life and limb in the “extra-electoral” context of the Kenyan fight for political power and it makes no sense to physically conduct the trial in such a way as to put more lives in the same type of jeopardy.
First, as a general proposition, witnesses against the President and Deputy President will never be able to live in safety in Kenya for any time in the foreseeable future after being identified and choosing to testify (they may wish to accept the danger of living in Kenya after testifying but this should not be asked or expected of them); this is the cold reality that should be readily evident to anyone who has paid attention to politics in Kenya over the years. If it is understood that witnesses cannot testify in Kenya then why split up the trials over more than one location? This process has already taken too long to no one’s benefit and supposedly the ICC has problems with resources and funding and a big backlog of cases already.
Second, estimates of the loss of life related to the most recent Kenyan elections with all priority on “peace” or stability over all else were still more than 500 people. The police made extra-legal pronouncements restricting lawful civic expression and assembly; the country was basically shut down, the military was deployed and people were shot for breaking no law. A trial in Kenya would be extremely expensive and quite dangerous by any informed reckoning. The suspects on trial would be in charge of the “security” forces. How many innocent lives will be lost for this? No one can know ahead of time but it is grossly irresponsible not to count on some people who have no role in the trials dying for holding them in Kenya.
The whole point of the ICC is that it is “international”. Thirty three other nations in Africa beside Kenya are members. The reason for these cases being at the ICC was the tactical decision to vote in the “duly elected” Kenyan Parliament to “don’t be vague, go to The Hague.” If “The Hague” no longer has the stomach for this, they should declare now that the task is too hard and walk away and make clear that Kenya, in spite of the work of the Waki Commission arising out of the AU-sponsored 2008 post-election settlement and the vote of its own parliament, is a zone of impunity, at least for suspects who arise above a political ceiling on potential accountability. Otherwise, these trials need to be brought to fruition and be heard and appealed and done with purposeful speed and as few diversions as feasible.
We all know that the crimes alleged happened. We saw them and heard them and see and feel their effects today. Those of us who lived through this time in Kenya heard various bits and pieces of the details as these things were happening. If the suspects or any of them are tried and acquitted then anyone who believes that they are in fact innocent of the roles alleged can celebrate that and all of us can finally mourn justice for these crimes along with the dead.
I was surprised to learn, quite recently, that Uganda has a Ministry of Ethics and Integrity. It reminded me of a Tanzania-based expatriate I once met who assured me that her work was in advising a Tanzanian Ministry with an equally improbable name: the ‘Ministry of Beekeeping’ (I have since learned, incidentally, that this may have been a private joke of hers, as what Tanzania actually has is a Ministry of Natural Resources and Tourism, within which there is a ‘Forestry and Beekeeping Division’.)
All the same, I have to wonder what that Ugandan ministry, concerned as it is with ‘ethics and integrity’ would have made of the appointment of Keriako Tobiko as the Director of Public Prosecutions – something which seems imminent at the time of writing.
The question is, After all that we have heard, can we really believe that this is a man of sound ethics and undoubted integrity? Were the accusations made by Prof Yash Pal Ghai, merely a figment of the good professor’s imagination, or is it actually true that Tobiko considered the entire constitution-making process as little more than a ladder that he could use to get access to the top political circles, and thus ascend to high office?
At other times, these accusations may not have mattered all that much. In the first place, Kenyans were previously accustomed to a childlike obedience to the dictates of the imperial presidency. In the second place, doing the dirty work for those higher up than you – or even just having the unmistakable capacity for doing so – was a recognized path to advancement in both the Moi era, and the early years of the Kibaki presidency. But times have changed, and there is – I think – a critical mass of Kenyans who are determined that we should no longer live in a country where those in power more or less do as they please, and the rest of us just have to put up with it.
In the circumstances, accepting the appointment as DPP will most likely prove to be not so much a victor’s laurel on Tobiko’s head, as a crown of thorns. As long as he holds this office, every step he takes will judged against his seemingly irregular appointment, and unflattering assumptions will be made as to his motives for every serious decision he takes.
And there is no question that this is an irregular appointment. Nobody can say at this point whether he is guilty or innocent of all or any of these accusations. But it is clear enough that they bear looking into.
The ruling came after two previous judges recused themselves following threats. Lady Justice Mary Ang’awa also had the unenviable task of hearing early cases against Rift Valley youths from post-election violence.
In the meantime, dysfunction in the coalition government ramps up with President Kibaki moving out to appoint new Chief Justice without ODM agreement as well as the ongoing effort to undermine the ICC without agreement of the Prime Minister.
“People, it is THREE YEARS since the election, isn’t it . . . ”
Surely it is a simple choice between the ICC and impunity at this point. Every Kenyan is is entitled to his or her opinion as to what is best, but it would be unfortunate to be diverted into fantasy in looking at the way forward. Who is it that said that the ICC process was ideal or perfect? The choice of the ICC was made with eyes open. It is only the desire to preserve the ground rules that accountability can only go so high, that certain “champions” are untouchable, no matter what they do, that has triggered the “buyers’ remorse” we are seeing now with the choice of the ICC.
Remember that the Truth Justice and Reconciliation Commission was sold as an alternative to legal trials. Now we see that Parliament was sitting on a report calling for Bethwel Kiplagat to be investigated for an alleged role in the Ouko murder when they approved him as head of the TJRC. I don’t buy the idea that any local tribunal now in Kenya could take on the highest level of suspects in the post election violence, and I think that is the whole point.
NAIROBI (Reuters) – Kenya’s justice minister said the rendition of Kenyans to Uganda to face charges of involvement in bomb attacks in Kampala should not have occurred and that parts of the judicial system had failed.
Mutula Kilonzo comment’s to Reuters in an interview late on Wednesday supported the view of two high court judges who have criticised the transfer of several suspects to Uganda.
"It is a failure of institutions because it should not happen. The judge in many respects is dead right because if you believe a Kenyan citizen has committed an offence, put him through the process," Kilonzo said late on Wednesday.
Judge Mohamed Wasarme said on Tuesday the transfers flouted the rights of the Kenyan citizens.
On Thursday a high court judge labelled the arrest, detention and removal of one of the Kenyan suspects as illegal.
A total of 38 people, including Ugandans, Kenyans and Somalis, have been charged with terrorism over the twin bomb blasts in the Ugandan capital that ripped through crowds watching the World Cup final in July.
The Kenya Human Rights Commission, a civil society group, says 13 Kenyans were illegally transferred to Uganda.
. . . .
Reprieve, a UK-based legal rights group, said worrying new patterns of counter-terrorism were emerging in east Africa.
"If it’s true Kilonzo was unaware of the renditions, then what we’re talking about is a rogue police force … that operates outside all chains of command," said Clara Gutteridge, a deputy legal director at Reprieve.
Earlier in the week we have seen Kilonzo back down on last week’s statement that the ICC was no longer needed to prosecute Kenya’s Post Election Violence since Kenya had passed a new constitution that would reform the police and courts. Hmm. . .
This strikes me as a classic “bait and switch” from the Kenyan political establishment to the international community.
Kenya’s Justice Minister says at this late date that because Kenya will be reforming its judicial and police systems under the newly passed Constitution, the ICC is no longer needed and should “keep off” as Kenya can now prosecute the post-election violence itself. I cannot imagine who would be expected to take this argument seriously. Certainly no one that has been paying any attention to Kenya for the past few years.
Presumably the real argument is that “because we have allowed Kenyans to pass this wonderful new Constitution–that you, international powers wanted more than we did–you owe us a pass on the post-election violence–just like you gave us a pass on the election fraud because we agreed to a “government of national unity”.
As with the election fraud, there is a real question here for the United States: how much do we want to know and when do we want to know it? The ICC is at best only going to try a tiny handful of suspects–most killers and their sponsors will not be directly touched. The ICC’s ability to gain convictions is not a foregone conclusion. Trials, however, would be public and would let the Kenyan public–and the international public–hear details of what happened. The United States has claimed to have quite a bit of information about the post-election violence. Presumably this is the case with the British and the other European players. To date, we have supported the ICC process lukewarmly as a substitute for the local tribunals that we preferred but the Kenyan leadership refused to approve. Where are we on this now?
A Cabinet Minister has launched a controversial campaign to stop the International Criminal Court from investigating and prosecuting post-election violence suspects.
Lawyer Mutula Kilonzo, who holds the Justice portfolio, claims that trial sought by the ICC chief prosecutor Moreno-Ocampo after he completes investigations in the next few weeks will be unnecessary when Kenya establishes a new judiciary, appoints an inspector-general of police, and installs a new director of public prosecution under the new Constitution.
The minister, whose docket is crucial to obtaining justice for the victims of the violence that broke out after the 2007 General Election, argued: “When these (appointments) are in place, we can say that Kenyan judges meet the best international standards. After that, I can even tell them not to admit the ICC case. Why on earth should a Kenyan go to The Hague?”