Since the tragic events that followed the disputed presidential elections on 27 December 2007 in Kenya, debate has been raging on what should be done, and what forms of accountability should be imposed on those responsible for the post-election violence. The Waki Commission on Post Electoral Violence (Waki Commission) recommended the creation of a special tribunal to try key suspects for crimes linked to the violence. A Truth Justice and Reconciliation Commission (TJRC), proposed in a separate process, has been established to probe human rights violations, corruption and other economic crimes since 1963, and the post-election violence could therefore fall within its mandate.
After many months of speculation on whether the government is committed to bringing to justice suspected individuals identified by the Waki Commission, either at home or at the International Criminal Court, the Government of National Unity (GNU) finally pronounced on the matter on 30 July. President Mwai Kibaki's announcement, which followed a tense three weeks during which the cabinet was deadlocked on the way forward, came after former UN secretary general and mediator in the Kenyan crisis Kofi Annan's decision to hand over the list of suspects to the Prosecutor of the ICC.
According the President's statement, cabinet was faced with four options: i) establishing a special tribunal; ii) setting up a special division of the High Court (Ugandan style); iii) directly referring suspects to the ICC in The Hague for trial; and iv) deploying ordinary criminal courts, together with the TJRC. The TJRC's powers will be enhanced. The president announced that having considered these options, as well as the possibility of withdrawal from the Rome Statute, cabinet resolved not to create a special tribunal but to instead deploy ordinary criminal courts and to expand the mandate and membership (of the commissioners) of the newly created TJRC.
The cabinet's decision to abandon the special tribunal in favour of ordinary courts and the TJRC raises a number of concerns and questions about national legal mechanisms for justice and accountability within the context of international criminal justice. A few of these issues, as they relate to the Kenyan scenario, are considered here.
First it is unclear from the government's position whether the TJRC will also handle post-electoral violence cases especially the most serious cases that could amount to crimes against humanity. It is not surprising that the European Union has asked the prime minister and justice minister for clarification on this issue.
Second, the TJRC Act is already in force. The chairperson, deputy chairperson and commissioners have been named and sworn in. If the recent cabinet decision requires changes to strengthen the TJRC, this will mean legislative amendments, which will have to be passed by a hostile parliament that earlier this year shot down a bill aimed at entrenching the Special Tribunal in the constitution. A sizeable section of parliament favors prosecutions and is as suspicious of the latest government demarche as it was of the previous one.
Third, the proposal to deploy ordinary criminal courts poses a number of problems. It is unclear whether the courts can successfully prosecute high-profile suspects named by the Waki Commission (which reportedly include cabinet ministers, members of parliament and businessmen). It is also common knowledge that Kenyan courts and the criminal justice system in general lack capacity or integrity to deal with such cases. The Waki Commission's call for a special tribunal was meant to bypass these difficulties. Although the government's statement notes that the justice system will need to be reformed in order to render this historic task possible, this will take months if not years, which Kenya does not have on this issue. The proposed fast tracking of reforms as part of Agenda Four of the national accord (that created the GNU in Feb 2008), relating to constitutional, institutional and other reforms has until now been mired in political intrigues and delays. Immediate action must be weighed against the necessary comprehensive constitutional reforms within the broader reform agenda.
Fourth, although Kenya has taken steps towards bringing justice to victims, it is important to ensure that these national mechanisms function in terms of acceptable standards. The meeting between the justice minister and the ICC prosecutor early last month required Kenya to set up a credible judicial mechanism to try the suspects within a year. Failure to do so would invite the ICC to take action. The question is whether the proposed measures will meet the thresholds required to keep the ICC at bay (namely that the Kenyan government is willing or able to take action). For his part, the ICC prosecutor will have to satisfy himself that crimes against humanity alleged by the Waki Commission were in fact committed. Recent reports indicate that Mr Luis Moreno-Ocampo, ICC prosecutor, is following the matter closely and has a team working on the Kenyan situation. Whether the Kenyan government is amenable to ICC intervention is, however, a separate matter altogether.
Fifth, for any domestic justice mechanism to be credible and legitimate, a number of basic standards, principles and norms - both within the ICC framework and international law generally - have to be met. Some of these include: victims' right to an effective remedy (including reparations) for human rights violations recognized under international law; amnesty and its limits; obligations under international law obliging states to prosecute at least the most serious violations; complementarity and in-built limits to state action.
Sixth, the president, when announcing cabinet's decision, asserted that while government would not allow impunity, the country must also pursue national healing and reconciliation. This is a significant observation, as decisions will ultimately take into account legitimate concerns about peace and stability in the country as well as the need to ensure justice and safeguard the rule of law. One suspects that considerations of peace and reconciliation will shape further government action and perhaps the course of transitional justice in Kenya. The tragedy will be if such considerations, however important, trump justice. The need to strike a blow against the seemingly entrenched cycles of impunity has never been greater.
The Kenyan TJRC, which will spearhead reconciliation efforts, must be bold enough to make tough decisions, however unpopular. This will require legitimacy, appropriate powers and sufficient resources. In this regard one hopes that the proposal to amend the TJRC law will not serve as an opportunity for those opposed to truth and justice to emasculate the already besieged institution. Moreover, effective national tribunals - no matter their form - as well as the ICC are, for a range of reasons, necessary components of an appropriate Kenyan response to human rights violations and the scourge of impunity.
Written by: Godfrey Musila and Jemima Njeri Kariri, International Crime in Africa Programme, ISS Tshwane (Pretoria)