Victims Demands for Prosecutorial Accountability

In spite the obligations set out in the constitution as well as the Kenya National Dialogue and Reconciliation Agreements, the needs and concerns victims of the politically instigated violence that followed the announcement of the 2007 general elections poll results continue to be ignore and disregarded by the machinery of the state.

The responsibility of the government to provide substantive justice and adequate reparations to the victims of the post-election violence for the gross and widespread atrocities committed remains unfulfilled. Indeed all attempts to secure accountability for the crimes committed in the post-poll chaos continue to be confronted by executive and parliamentary subversion; reparative measures have been grossly inadequate and poorly coordinated and measures at securing reconciliation and integration continue to be undermined by mobilization of political support along ethnic lines through, among other means, the “ethnicization” of criminal accountability.

While the vast majority of perpetrators continue to thrive from impunity, does little to secure accountability or redress for victims of post-election violence concerning the crimes unwittingly committed against them by virtue of their specific ethnicity and for the purpose of political ambition. Most of the victims continue to languish in deplorable physical, socio-economic and humanitarian conditions. Furthermore, they continue to reside under constant fear of persecution by virtue of their potential as witnesses to the ongoing international criminal justice process before the International Criminal Court (ICC).

Only recently, ICPC highlighted in the media that it had received reports of insidious operations by certain parties claiming to be registering the victims to receive reparations through the ICC process in the North Rift. Unlike most civil society organizations whose interactions with victims has been measured and precautionary, these individuals sough to induce victims to provide their personal information by the promise of reparations through the ICC process.

In the face of these matters ICPC together with victims from various parts of the country insist that the government reverse direction and take up their lawful responsibilities as follows;

Cooperation with the ICC process

Late last year, Parliament and a large segment of the Executive undertook to depart from their obligations to cooperate with the ICC as provide for under the Rome Statute by motions to withdraw from the Rome Statute (the treaty establishing the ICC) and repeal the International Crimes Act that domesticated the treaty. Their driving contention was that the prosecution of nationals through a foreign tribunal was an affront to the sovereignty of the State.

The signing and ratification of treaties is as much an exercise of State sovereignty as imposition and collection of taxes. In the ratification of treaties states are expressly stating their intention to submit to the obligations stated therein. State sovereignty may, therefore, be limited by customary and treaty obligations in international relations and law. Consequently, states are legally responsible for the performance of their international obligations, and state sovereignty cannot be an excuse for their nonperformance.

The government, in exercise of its sovereignty ratified the Rome Statute in 2005 thereby limiting its sovereignty to the provisions within the treaty.

Establish mechanisms to prosecute mid and lower level perpetrators

The ICC process, as a matter of policy, only pursues those perceived to bear the greatest responsibility for the specific international crimes under consideration. The vast majority of perpetrators involved in the actualization of the criminal conduct in question must face prosecution through local mechanisms. The reform of the judiciary under the new constitution requires the restructuring and reconstitution of the entire judiciary, and will logically take quite some time to realize. In the meantime, the justice needs of the victims and the nation as a whole continue to be deferred. Justice delayed is justice denied. There is therefore need to fast-track the establishment of a special local tribunal, operating in conjunction with the ICC, to prosecute remaining perpetrators of the post-election violence.

Confront and curb ethnic mobilization by some of the key suspects to the ICC case

Since the announcement of the six suspects by the ICC chief prosecutor, those named have sought to solidify ethnic support against the process by painting themselves as blameless victims of a politically instigated maneuver to deny their communities of ostensible tribal leaders in the upcoming electoral process. The success of these efforts lies in the unfortunate reality that Kenyans continue to view State Offices as avenues for personal benefit and advancement, when managed by their ostensible tribal leaders. The politicians among the six suspects have used this popular perspective to galvanize ethic support by ethnicizing the criminal accountability process in question.

It should be noted that criminality depends not just on the act committed but most importantly on the intent to commit the criminal act. While the criminal act can be done in concert with others, intention is always individual. Consequently, accountability for criminal activity, whether done in the name of a community or group, is exclusive to each individual by virtue of the individual nature and responsibility for ones intention.

Removal of suspects to the ICC proceedings from holding public office

The Minister of Finance and the Head of the public service are both suspects in the ongoing ICC process and their continued stay in these powerful offices poses a grave threat to the integrity of any accountability processes as well as to the well being of victims and witnesses to the same. The continued management of vital state offices by some of the six suspects has witnessed the facilitation of shuttle diplomacy to subvert the ICC process, attempted breaches of the constitution through the failed appointment of key officers in the justice sector and an unprocedural police vetting process – all in attempts to frustrate the reform of organs within the justice sector.

It is imperative that these individuals be removed from their positions as State officers until such a time as their cases before the ICC are concluded. These offices must be held and managed by individuals of high integrity and moral character as was envisioned in Article 73 of the constitution. The fact that the current Minister for Finance and the Head of the Public service are under suspicion before an independent international criminal tribunal for crimes against humanity, stands in stark contradiction to the national values and principles under the constitution as well as the provisions on Leadership and Integrity.