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Kibaki Is Inconsistent On The Hague Matter

Following the decision of the Pre-Trial Chamber today to commit the suspects to trial for crimes against humanity and other gross human rights violations, all those implicated and still holding public office have to leave forthwith. With this confirmation of charges for serious crimes known to humanity today, a serious indictment has been passed not only on the suitability of the suspects to serve in public offices but also the commitment of Kenyan institutions that have failed to prosecute them and other caliber of suspects for over four years now.

Indeed, over this period the question has never been lack of evidence against the suspects but rather deliberate efforts from the top echelons of political power to frustrate any attempts to bring suspected masterminds of PEV to account. This apparently miscalculated move was a desperate move to perpetuate official impunity in Kenya by protecting the suspects from prosecutions. It is sad that through their action or inaction, these government officials including the President Kibaki, demonstrated to the world that for them the desire to protect the suspects overrode the interests of victims of PEV yearning for justice.

No doubt, the government has always had sufficient evidence to mount prosecutions against the suspects. In fact, countless number of official investigations have been conducted by various government organs on PEV and all returning same verdict on culpability of the suspects and other organs of the state including police. Indeed, it is in public domain that the ICC itself relied considerably on official government reports produced using public funds. These include reports by CIPEV (Waki Commission), KNCHR reports, reports by the AG’s office and those of NSIS. These reports have been available right from 2008 yet no action has been contemplated. In fact even the CID, through a committee led my former Deputy CID Director, Futu Mwachai, compiled a report pointing toward inaction on PEV cases. So far, its recommendations have been ignored therefore putting the country in sharp international focus.

It is clear to all and sundry that the government led by President Kibaki has been shielding the suspects from being brought to account. Through deliberate inconsistencies in actions taken to deal with instances of allegations of abuse of office or criminal culpability of public officers, the President has simply avoided to take action in direct violation of the constitution. Whilst the President has in the past been quick to suspend public officials on mere allegations of corruption through Executive Orders as happened in the case of cemetery land purchase by the Nairobi City Council, he has failed to take any action in relation to the suspects of PEV. The president also suspended former Kuria MP Wilfred Machage on arguably less charge of hate speech while protecting those suspected of committing the highest crimes known to humanity to date.

It is from this perspective that ICC’s decision ought to be appreciated. The country cannot afford the status quo of inaction at a time when serious human rights violations continue to go unpunished. The situation is exacerbated by clear failure by the AG’s office and relevant state organs to put in place meaningful witness protection mechanism that can protect witnesses of PEV cases. This has, no doubt, left many potential witnesses in dangerous situations exposing them to potential reprisal attacks whilst others have lost their lives.

What is the more worrying about these actions and or inactions by the government is the fact that they clearly contravene the Constitution and the Public Officers’ Act, which require the highest standards integrity and avoidance of potential conflict of interests. The President is, therefore, presiding over breach of the constitution and rule of law which he is supposed to be a custodian of. This is not only unfortunate but also threatens the country’s democratic path, which is hinged on rule of law and public confidence. These two aspects cannot exist in an atmosphere where the basic principles of the constitutions are blatantly disregarded.

Accordingly, any step taken by the ICC must be supported as the only hope for the victims of PEV and positive step to confront impunity that has ruined our country for many years. It however, does not exonerate the government from carrying out complimentary prosecutions locally. In fact, it must now stimulate the action which has long the missing. It is prudent to remember as a public officer, the president has a compulsory duty to act to uphold the rule of law. By this inaction, he is exposing his office to judicial review action in the High Court to compel action. This is an option that the constitution created and that all well-meaning will explore unless appropriate steps are urgently taken.

Signed By:

Ndung'u Wainaina

Executive Director of International Center for Policy & Conflict (ICPC)