Vote for impunity betrays us all

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On the day members of the Tenth Parliament crushed our hopes for a local tribunal to deal with post-election violence, pretrial judges considering evidence at the International Criminal Court (ICC) at The Hague sent a mixed message to Kenya and the world.

Having reviewed the case made by ICC Prosecutor Luis Moreno-Ocampo against President Omar Hassan al-Bashir of Sudan over six years of atrocities in the Darfur region, they issued a warrant of arrest. He can be charged with “war crimes” and “crimes against humanity” for his role in a campaign of mass murder that has left more than 300,000 civilians dead and displaced 2.7 million.

Following a dissenting opinion from one of the three judges, it was ruled al-Bashir cannot be tried for genocide. This is notwithstanding the fact that most nations and international organisations recognise that what has been happening in Darfur is, in every sense, a genocide and that al-Bashir’s regime is primarily responsible for it. That said, the ICC decision is a victory for human rights as, for the first time ever, a sitting head of state is being put to his defence in the eyes of the world over atrocities his government has committed or abetted.

This decision has huge implications for Kenya, where, as the international community has determined, we had “ethnic cleansing” — forced removal of a population from a designated piece of territory, which is a crime against humanity — but not genocide, as codified in the United Nations Convention of December 1948.

Unforgivable betrayal

It reminds us that many of the kinds of criminal actions we have to investigate and prosecute fall outside the threshold of anything the ICC can entertain. Unless we deal with them ourselves, many of the crimes committed against the 1,200 or so killed and hundreds of thousands displaced will likely go unpunished.

Parliament was yesterday almost evenly split on the Motion that would have provided a constitutional basis for the Special Tribunal for Kenya recommended by the Waki Commission. The 93 MPs who voted against it and the lone abstainer may genuinely believe they are doing the right thing in the battle against impunity. But it will soon become clear that those bearing greatest responsibility have less to fear from Lady Justice thanks to their unconscionable betrayal.

With the Motion lost, the Government has the option of reintroducing the Bill in six months. We fear that the developments in that period will likely bolster the position of those who want nobody to be held to account. This vote and the skipping of debate on the Statute for the Special Tribunal, announced with indecent glee by the House Speaker, dare Dr Kofi Annan to hand the ‘secret envelope’ of names and evidence to the ICC Prosecutor.

There is a likelihood he may not, preferring to wait for a second try to determine whether political will to prosecute perpetrators exists. This would advertise ‘weakness’, however, and perhaps increase the dissenting vote. On the other hand, should he give the ICC the envelope and the matter fail to take any urgency, a likely scenario as Kenya’s situation pales in comparison to atrocities elsewhere, the idea of abandoning efforts to deal with the issue in a special court and burying it in the Truth, Justice and Reconciliation Commission will quickly take root.

No justice

The way we see it, the 94 MPs who stood in the way of the Motion have all but ensured that no justice will be had for the worst crimes Kenya has seen and primed the country for continued politically-motivated violence.

If MPs, in their obsession with the dozen or so names in the secret envelope, have forgotten the crimes we seek to punish, they should know the people haven’t.

The first major atrocity of the period, the church burning in Kiambaa, involved between 700 and 2,000 perpetrators. Only four are on trial. The record on prosecutions of other crimes committed in the weeks that followed is just as dismal. For the House to gamble on The Hague to investigate and prosecute these crimes is a major betrayal whose import they are yet to discern.

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