From: ouko joachim omolo
Colleagues Home & Abroad Regional News
BY FR JOACHIM OMOLO OUKO, AJ
NAIROBI-KENYA
THURSDAY, JANUARY 26, 2012
There are several reasons why President Kibaki was misled by his PNU loyalists to create a panel of legal experts to tackle the ruling by the International Criminal Court (ICC) instead of forwarding the matter to Cabinet sub-committee on the National Accord, which is tasked with the job.
One reason being that the seven-member sub-committee is chaired by Prof George Saitoti and Foreign Affairs minister Moses Wetang’ula who have already declared their interest to vie for presidency. Kibaki could also not trust Justice Minister, who has already spoken his mind that Uhuru Kenyatta and William Ruto cannot vie for presidency because their cases have been confirmed by the ICC.
Other members in the committee Kibaki cannot trust include Mr James Orengo, Mr Otieno Kajwang’ and Mr Amason Jeffa Kingi who definitely cannot support Uhuru’s bid for presidency or Ruto because Raila Odinga is also on the race.
He is now left with a ten member-team appointed by Attorney General Githu Muigai he can trust. They include Mr Geoffrey Nice, a Queen’s Counsel of London, Mr Rodney Dixon a Barrister of London, and Senior Counsel Fred Ojiambo, Joe Okwach, Waweru Gatonye, International law experts Godfrey Musila, Betty Murungi, Lucy Kambuni, Grace Wakio and Henry Mutai.
The team will decide the fate of Finance Minister Uhuru Kenyatta and Head of Civil Service Francis Muthaura after their appeal on the ruling by the International Criminal Court confirming charges against them.
The second reason is based on the revelation by The Hague judges that President Kibaki had a meeting with Mungiki members at State House alongside Francis Muthaura and Deputy Prime Minister Uhuru Kenyatta, whose charges were also confirmed with Mungiki. The judges used the two meetings to anchor the charges against Uhuru and Muthaura.
The references to the meetings, which may cast aspersions on the President’s impartiality when it comes to making hard decisions on Uhuru and Muthaura, were also made by the report on post-election violence compiled by a judicial commission presided over by Justice Phillip Waki.
Although the meeting of November 26, 2007 according to Kibaki was a meeting with youths who were supporting his campaigns, even if Uhuru did not attend as the President claim, the fact that Mr Muthaura attended the meeting is enough reason to assert that allegations are so serious and it will always remain to haunt Kibaki and State House for good.
Kibaki while admitting that the meeting indeed did take place except Uhuru was not present, the big question is why could Muthaura be involved in a campaign meeting for Kibaki? And whose major policy issue affecting his youth campaigners that Muthaura had to attend?-Mr Muthaura is not allowed to participate in any political affairs because he is a civil servant.
So there is absolutely no way the allegations can be inimitable to Kibaki and contrary to everything he stands for. The bottom line here is not whether Kibaki is opposed to Mungiki as he claims- the issue at hand here is that Kibaki cannot escape this trap. Kibaki has no other alternative but to suspend Uhuru and Muthaura pending the outcome of the court.
This is in accordance to the promise Kibaki and Raila made to Kenyans in writing on December 16, 2008, that any public officer who is charged for offences related to the post election violence of 2007-8 which resulted in the killing of over 1,133 Kenyans and the forcible displacement of over 500,000 Kenyans would be immediately suspended from public office.
His move to defend Uhuru and Muthaura and refuse to suspend them from the public office then it would politically imply that if Uhuru becomes the president then Kibaki would be safe from the fact that when the State House will be preparing to start local trials for minor offenders in post-election violence, estimated at 5,000, with the Attorney General already asking the Chief Justice to set up a special court for international crimes committed in Kenya, the charges will easily be dismissed.
The Agreement signed by the two Principals of the Government of Kenya, President Mwai Kibaki and Prime Minister Raila Odinga explicitly stated in Article 4 that: “The Parties shall ensure that any person holding public office or any public servant charged with a criminal offence related to 2008 post-election violence shall be suspended from duty until the matter is fully adjudicated upon. The parties shall ensure that any person convicted of a post-election violence offence is barred from holding any public office or contesting any electoral position.”
Mr Muthaura was alleged to have used his influence in government to direct Maj General (Rtd) Ali, then the police commissioner, to pave way for Mungiki youths to carry out attacks in Naivasha and Nakuru. He was also accused of obtaining police uniforms and military trucks to ferry the youths to Naivasha and Nakuru. Muthaura is the President’s permanent secretary and confidant.
Uhuru Kenyatta faces charges of developing a plan to take revenge for Kikuyus and keep Kibaki in power. He was allegedly the focal point between the government and the Kikuyu Mungiki sect, which was sent to the Rift Valley, set up road blocks and went house-to-house killing some 150 suspected of ODM supporters.
Majority of Kenyans are opposed to the ICC case referred to Kenya because this could be manipulated by those with vested interest, and the judiciary could not be relied on to deliver justice, especially in an electoral dispute. Mostly powerful individuals would use it to avoid accountability just as it used to be part and parcel of the colonial state, which used violence to ensure control of power.
After independence, President Jomo Kenyatta used it to maintain power, with the use of violence mainly concentrated in the hands of the State, rather than outside of it. Opposition parties were subjected to political harassment and those individuals who refused to support the status quo experienced various types of repression and even detention without trial.
This was and still impunity of high class where the president uses his power to refuse to punish those who disobey the law. When people break the law and not punished they tend to repeat their crimes because they believe they will never be punished-when many people from the habit of breaking the law and nothing is done to hold the accountable, this encourages the culture of impunity. This is not we want in Kenya.
The new constitution cannot work yet because there is no political will for institutional reform-that is why the judiciary and police and government departments do not function properly, resulting in poor service, and wastage of public funds, human rights violations, corruption, among other vices.
That is also why the National Accord has failed to work. In its four agenda, the accord requires that there should be immediate action to stop violence and restore fundamental rights and liberties. Immediate measures to address the humanitarian crisis and promote reconciliation and healing, how to overcome the political crisis and long term issues and solutions.
The National Accord noted that the post-election violence was not just about the dispute, results of the elections, but deeper underlying the root causes which were seen to be unemployment, poverty, unequal distribution of resources, perception of historical injustices and exclusion.
Agenda four was meant to outline solutions to these root causes-these solutions include undertaking constitutional, legal and institutional reform, tackling poverty and inequity, as well as combating regional development imbalances, tackling unemployment, particularly among the youth, consolidating national cohesion and unity, undertaking land reforms, addressing transparency, accountability and impunity.
According to political experts these have failed to work because there is no transitional justice in Kenya as yet. This is because government which was responsible for human rights violations has not changed. It has not recognized the fact that all Kenyans are equal and entitled to certain rights and freedoms. It is the government where people are not made to meet the consequences of failure to obey established rules or laws.
Yet still, some communities in Kenya feel that land distribution and settlement policies have unfairly affected their ancestral land-some feel that a new redistribution policy was necessary at independence to take care of those who lost their land during colonial rule.
It is also why the government is reluctant to deal with historical injustices in terms of unfair distribution of national resources and opportunities and see allocation as having favoured some regions.
In some parts of the country there are some who feel they have been habitually discriminated against to the point of being treated like second class citizens with fewer rights than other Kenyans accepting this as normal.
It further explains why crimes against humanity are serious and systematic coordinated offences which continue to cause harm and loss of human dignity, cause humiliation or shame to one or more human beings.
This is the summery of the accord timeline:
28 February 2008- The National Accord and Reconciliation Act is signed establishing a coalition government with Kibaki as president and Odinga as prime minister. It also established the Commission of Inquiry into Post-Election Violence (CIPEV).
15 October 2008- CIPEV submits its report and recommendations to the government of Kenya; recommendations include the establishment of a special tribunal of national and international judges to investigate and prosecute perpetrators of the post-election violence. The report also states that if the tribunal is not set up within six months, information collected by the commission will be passed to the ICC, including a sealed envelope of names of those suspected to be most responsible for the violence.
16 December 2008- An agreement for the implementation of the CIPEV recommendations is signed by the president and prime minister.
27 January 2009-The CIPEV report is adopted by the National assembly (parliament).
12 February 2009- The Kenyan parliament votes against the establishment of the proposed tribunal to address the post-election violence.
3 July 2009- Three cabinet ministers sign an agreement with the ICC committing Kenya to establish a credible and independent tribunal to try perpetrators of post- election violence by August. The Kenyan delegation agrees to provide the prosecutor a report on the status of investigations and prosecutions arising out of the post-election violence, as well as information on victim/witness protection mechanisms, by the end of September 2009.
It also agrees to provide the prosecutor with information on modalities for conducting national investigations and prosecutions of those responsible for the 2007 violence through a special tribunal or other judicial mechanism adopted by the parliament with clear benchmarks over the next twelve months; in the alternative, if there is no parliamentary agreement, and in accordance with the commitment to end impunity of those most responsible for the most serious crimes, the government is to refer the situation to the prosecutor in accordance with Article 14 of the Rome Statute.
9 July 2009- The prosecutor is sent six boxes containing documents and supporting materials compiled by the Waki Commission during its investigations. The document includes a sealed envelope that contains a list of suspects identified by the Commission as those most responsible for the violence.
30 July 2009- A bill to use the ordinary criminal courts and enhance the mandate of the
Truth, Justice and Reconciliation Commission to investigate and prosecute post-election violence, introduced by the justice minister, is rejected by the cabinet. A third attempt also fails when a private member’s bill, again to establish a local judicial mechanism, is unable to proceed because of a persistent lack of a quorum in parliament. The rejection by parliament of the bills to establish a special tribunal are accompanied by the slogan “don’t bevague, go to The Hague”.
9 November 2009- Parliament starts debating another constitutional amendment to form a special Kenyan tribunal. That debate has never concluded.
26 November 2009- ICC Prosecutor Moreno-Ocampo files a request seeking authorisation from Pre- Trial Chamber II to open an investigation in relation to the crimes allegedly committed during the 2007-2008 post-election violence in Kenya.
31 March 2010- The three-member Pre-Trial Chamber II issues a majority decision that there is a reasonable basis to proceed with an investigation into the situation in Kenya in relation to crimes against humanity within the jurisdiction of the Court committed between 1 June 2005 and 26 November 2009.
15 December 2010- The ICC Prosecutor requests the issuance of “summonses to appear” for six individuals alleged to be responsible for the commission of crimes against humanity in the Kenya investigation: William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang (case one) and Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohamed Hussein Ali (case two).
8 March 2011- Pre-Trial Chamber II issues the “summonses to appear” for the six individuals, as it finds reasonable grounds to believe that they committed the crimes alleged by the Prosecutor.
31 March 2011-The Kibaki government files an application challenging the ICC’s jurisdiction over the cases.
7 April 2011- The first three suspects (Ruto, Kosgey and Sang) make their initial appearance before the Court in The Hague.
8 April 2011- The second group of three suspects (Muthaura, Kenyatta and Ali) make their initial appearance.
1 September 2011-The hearing to confirm or reject the charges begins for the first three suspects (Ruto, Kosgey and Sang).
21 September 2011-The hearing to confirm or reject the charges begins for the second three suspects (Muthaura, Kenyatta and Ali).
23 January 2012- Charges against Henry Kosgei and Ali are dropped-shortly thereafter Kibaki directs AG to create a committee of experts to look into the decision of the ICC and advice his government accordingly.
People for Peace in Africa (PPA)
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E-mail- ppa@africaonline.co.ke
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