Let Hague not be the only option

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It seems Kenyans have been evaluating various options since the country hit the campaign trail in 2007.

They started by scattering to various political parties ahead of the General Election and explored the options of mayhem and plunder once the results were announced.

Former UN Secretary-General Kofi Annan pleaded with Kenyans to see reason and consider yet another ‘option’. It was one of peace and reconciliation.

Kenya was to travel farther down that road until they meted out justice against the perpetrators of politically-instigated blood-letting. They performed poorly when we reached a crossroad: The International Criminal Court at The Hague or a locally-based Special Tribunal.

Many are split between either option and even following Government’s defeat last Thursday in favour of The Hague, a ‘Third Option’ has been proposed.

Shades of opinion

Many analysts believe that all is not lost on the path of consensus and reconciliation. The voices are proposing a UN Security Council-sanctioned local tribunal along the lines of the one in Sierra Leone and the one trying former Khmer Rouge hardliners in Vietnam.

They suggest that since the structures of the International Criminal Tribunal for Rwanda (ICTR) in neighbouring Tanzania are intact, it would make financial and logistical sense to hand these over to try Kenya’s ‘Bad Boys’ considering the ICTR mandate runs out before the end of this year.

Others who oppose The Hague way are sure there will be flaws in the Prosecutor’s case so that most genocide suspects may even never come to court. They are surer of some form of litigation in a local tribunal that does not play to the court of international public opinion.

In the opinion of experts like Alex de Waal, a researcher, writer and activist on African issues, the crime of genocide is often very difficult to prove. He says the 1948 Genocide Convention and the case law of prosecutions for genocide (derived from the ICTR and ICTY) provide a relatively modest basis on which to build a robust prosecutorial strategy.

Fast-track Kenya case

It may not be difficult to show that suspects have a case to answer (the threshold that must be met for the Pre-Trial Chamber to issue an arrest warrant).

But these are issues to be dealt with in the future. The impasse is a mere agreement on location and form of such a tribunal.

Defeat of the Constitution (Amendment) Bill 2009, the law that was needed to create a court to deal with post-election violence, has challenged the shaky stilts on which the Grand Coalition Government is perched.

But the battle against impunity must be won and any and all shades of opinion and options must be explored.

Let us not forget the vested interests of many local lawyers who would want to work with such a tribunal instead of exporting the jobs and fees abroad. We nevertheless have to hear their lamentations in favour of our ‘local arrangement’.

Similarly, the fear that The Hague route would only try a couple of masterminds and financiers of the violence and let many of their foot soldiers of rapists, arsonists and looters get away scot-free is reason enough to choose the Sierra Leone sanction.

We agree with former MP Paul Muite that there is growing momentum internationally and in the UN to fast-track Kenya’s case with good reason: Nobody wants a repeat of what happened in Sudan’s Darfur, Eastern Democratic Republic of Congo and most recently, Somalia, where a seemingly unconcerned world went about its business until the dead approached or exceeded the million man mark.

Moreover, Kenya’s special place in the Horn of Africa and gateway to the Great Lakes region should be safeguarded.

They cannot agree to go to the polls of 2012 election with the structures they have. Kenyans are not just seeking a photo-finish ahead of the next election. This struggle is not a beauty contest.

Let us explore the so-called Third Option. Kenyans cannot afford another armed face-off. Not now, not ever.

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