Advertisement

Battle to end impunity is on – and it will be hard

Saturday September 14 2013

Finally, five years after the fact, critical trials in relation to the post-election violence have begun. This past week saw the opening of the trials of William Ruto and Joshua Sang. They are charged with crimes against humanity committed in the north Rift in early 2008. Uhuru Kenyatta’s trial is to begin next month.

It is important to recall, despite its later change of heart and prevarications, that the African Union’s Assembly of Heads of State and Government as well as its Peace and Security Council repeatedly called, in decisions, statements and resolutions on the post-election violence, for justice to be done.

Evidently, at that time, neither the AU Assembly nor the PSC could have predicted where that call for justice would lead too. But, evidently too, the notion that the AU Assembly and the PSC endorsed diplomacy and mediation over criminal justice is false.

Both, from the start, signalled definitively and explicitly that individual, legal accountability was necessary — not counter — to the diplomacy and mediation underway.

It is true that we have since passed a new Constitution. It is true too that security sector reforms have begun. And, finally, it is true that judicial reforms are underway. But the most important parts of the Constitution with respect to individual, legal accountability are under threat.

The judiciary chose to consider the integrity provisions of Chapter 6 as not applying to this year’s general election. Amendments to all the recent Acts relating to the police are on the table — with some of those being blatantly unconstitutional. And all of them undermine the potential to realise increased accountability of the police.

Advertisement

As for judicial reforms, the appalling Supreme Court decision in respect of the presidential elections has left little doubt that, just as before, the judiciary acts in the interests of power, not the people.

Both Cabinet and parliament endorsed, in full, recommendations and all, the report of the Commission of Inquiry into the Post-Election Violence.

Parliament then, no less than three times, failed to pass into law Bills to establish a Special Tribunal to prosecute related cases here. And the DPP, having reviewed through a Task Force all open files in respect of the post-election violence only last year, concluded that investigations had been too poor to proceed.

Thus, that these trials are before the ICC is an indictment of our inability to move forward consistently. Power concedes. And then power promptly claws back, tries to regain lost ground.

There is no battle that will be harder for us to win than the battle to end impunity in Kenya. What is shocking is that in this battle we have apparently lost the people. We have revealed new — and entirely surprising — capacities for ethnic chauvinism, for vitriol. We have revealed our capture by the most basic co-option —standing on the side of power as though power has ever stood on our side.

But, despite all, the trials at the ICC have begun. Let justice be done and be seen to be done.

L. Muthoni Wanyeki has just completed her graduate studies at L’Institut d’etudes politiques (Sciences Po) in Paris, France

Advertisement