Nairobi, June 13, 2009…… The International Center for Policy and Conflict(ICPC) while supporting the latest ultimatum by the Dr. Kofi Annan for the enactment of the Special Tribunal for Kenya, would like to observe that the government of Kenya commitment to prosecution of the perpetrators of horrendous post election violence atrocities is not only in doubt but has in effect collapsed. The constant presidential promises on the enactment of the Tribunal are apparently overtaken by political rhetoric and succession politics with impunity prevailing over justice. The government of Kenya and Parliament are obstructing the path of justice by showing little interest in supporting credible prosecutions of the perpetrators most responsible for the post-election violence and gross systematic human rights violations including extra judicial killings.
Kenya is under an international legal obligation to investigate and, if admissible evidence is gathered ,prosecute all those suspected of having committed crimes under international law. Kenya cannot miss another opportunity to fight against impunity for the crimes committed during the post-election violence of 2007/2008. Not taking any initiative, waiting for International Criminal Court (ICC) to intervene, is not an option. Kenyan authorities cannot wait for International Criminal Court to end impunity for grave crimes committed within its territorial jurisdiction. If the International Criminal Court were to intervene, it would only be able to prosecute a few of those responsible for such crimes, thus leaving an enormous impunity gap, unless Kenya acts internally.
The Commission of Inquiry into Post-Election Violence found that politicians from across political divide organized violence against their opponents supporters ,and that security forces used excessive force against civilians and failed to investigate and prosecute those responsible for these human rights abuses. The report further drew the parallel with fail to take prosecutorial accountability measures with political violence in the past. Kenyan government has an obligation therefore to establish an independent and impartial justice mechanism to ensure that there is no impunity for perpetrators of human rights violations. Those responsible for killing or other human rights abuses must be brought to justice in proceedings that comply with international fair trail standards. Victims and their families must benefit from the right to redress and reparation, including compensation.
It is the responsibility of government to create a Special Tribunal consistent with international law that is independent of political or other interference and guarantee fair trials. In particular, the Constitutional Amendment Bill and Special Tribunal fro Kenya Statute should ensure proper definition of the crimes; principles of responsibility and defenses are consistent with the strictness requirements of international law; the special tribunal is guaranteed independence from any political or other interference; and provides effective provisions on victim and witness protection are included. The continued unwillingness or failure of the government to uphold the rule of law signals to Kenyans that who abuse peoples fundamental rights are above law.
ICPC would like to emphasize that not dealing with the issue of criminal responsibility for crimes committed during the post election violence and a failure to ensure that victims have a right to reparations will only store up underlying political and socio-economic problems in Kenya. A Special Tribunal for Kenya involving both domestic and international investigators, prosecutors and judges would be the best placed to end impunity and restore faith in Kenyan judicial system; and that such a Tribunal (though not mutually exclusive to ICC) is preferred option as opposed to a transfer of jurisdiction outside of Kenya for the following reasons:
- Impunity is likely to go unchecked in the event of referral to The ICC as the conditions for An ICC referral/ investigations may be hard to establish.
- A domestic led and involved investigation is more likely to produce accurate and cogent evidence for perpetration.
- Identification of perpetrators responsibility ought to be priority of any process and that necessarily requires full local engagement.
- The delay which will result in any referral to an outside jurisdiction will be detrimental to justice and will assist the perpetrators to evade detection.
- It is in Kenyan national interests to develop strong, transparent and accountable mechanisms, which will enhance local justice rather than undermine the legal and judicial infrastructure.
- It is also in the Kenyan national interest to develop a sense of ownership and participation in the justice process in order that the victims and relatives are able to witness and participate in the process.
- It is further in the Kenyan national interest that such mechanisms implicitly incorporate a process that allows for meaningful justice and reconciliation between communities affected by the violence.
- Any recommendations and lessons to be learnt are likely to be of sustainable benefit if they are produced by a local and engaged national tribunal assisted by a willing partnership of relevant institutions and individuals including an international component when necessary.
It is our considered opinion that the government of Kenya silence on this matter does not only assist in denying perpetrators’ responsibility for the violence, but would actually perpetuate a grave injustice against the thousands of victims who deserve truth and justice. To allow these serious crimes to remain unaddressed would gravely undermine any process of building effective institutions to protect human rights and strengthen the rule of law. Removal of the perpetrators of the violence from government positions must be prioritized. This step is essential to ensure that crime is not rewarded and to prevent these individuals from repeating their crimes.
The International Center for Policy and Conflict, ICPC, is registered in Kenya under the Trustee (Perpetual Succession) Act as non-government, non-profit organization fostering democratic, peaceful, secure and just societies in the Great Lakes and Horn of Africa by engendering the principles of justice, accountability, the rule of law and sustainable human security. These goals are accomplished through research, documentation, capacity building and technical assistance, networking, dialogue, information sharing and advocacy. The Center's core programmes are: Transitional Justice; Conflict Resolution and Peacebuilding; Gender Justice; Capacity building and Technical Assistance; and Human Security and Displacement.