Our Cabinet completely lost the plot with its supposed decision this past Thursday.
I say supposed decision because it was not a decision — in the sense of proactively choosing from realistic options for achieving justice for the victims and survivors of last year’s violence.
It was instead a pandering to the lowest common denominator and an utterly shameful demonstration of its absolute inability to stand up against impunity in the face of the obvious personal political interests of its individual members.
Let us explore the implications of the supposed decision — to try suspected perpetrators of last year’s violence through the regular courts.
First, the decision implies that all suspected perpetrators will be charged for existing crimes in our penal code only.
As the International Crimes Act domesticating the Rome Statute was only passed last year, trying to bring its provisions into effect with respect to last year’s violence would be open to charges of retroactivity.
Kenya’s international obligations to the International Criminal Court, on the other hand, stood as of the moment that it signed on and ratified the treaty — regardless of whether domestication had taken place at that time or not.
What this means is that — as is usual in Kenya — only the lowest levels of perpetrators are likely to face justice.
Second, the decision implies that only lower-level perpetrators of the initially spontaneous but increasingly organised violence in the North Rift are likely to face the law. Lower-level perpetrators of the other two forms of violence — that committed by security agencies and the organised counter-attacks in Central, Nairobi and the South Rift —will probably be able rest easy. As will lower-level perpetrators of the sexual violence that cut across all three forms.
The Attorney General has yet to make public the breakdown of the 150 or so criminal cases he says he has ready on the violence.
But the outcry from families of those unconstitutionally and illegally detained last year in respect of these crimes points to this supposition.
As does the trailing off into nothingness of the task force convened by the Kenya Police into the sexual violence.
Third, the decision implies that the Criminal Investigations Department will be responsible for investigations into the violence.
The police, together with the Administration Police, of course stands accused by the Commission of Inquiry into the Post-Election Violence of being responsible for no less than a third of the deaths that occurred — and a host of other related crimes from theft to rape during that period. It is also documented as having turned a blind eye to the ferrying of armed militia into the South Rift for the organised counter-attacks.
To expect the CID to investigate these accusations is to expose it to a massive conflict of interest — and the CID has no great record of standing for the public interest where conflict of interest exists—or of concern with accountability of the police force as a whole. And this is, of course, apart from the questionable quality of its investigations.
Even a cursory examination of the three criminal cases brought forward with respect to last year’s violence so far demonstrates these concerns.
The Kiambaa case was thrown out.
The case against the policeman caught on camera in Kisumu has yet to be concluded.
Only the case of those charged with killing two policemen in Roret market has been concluded with convictions — and that only this past week.
Fourth, the decision implies that the Director of Public Prosecutions under the AG’s office will be responsible for prosecutions — leaving all cases open to the vagaries and whims for which the AG’s office has become notorious.
Today you see him, tomorrow you don’t, depending on whose personal or political interests have been touched upon.
Fifth, the decision implies that our own judiciary will hear the cases brought forward.
Its independence is in question, particularly with respect to cases touching on the personal and political interests mentioned above. Enough said.
Sixth, and importantly, the decision says nothing about the safety of witnesses in such an arrangement.
It is already clear that the Witness Protection Act, placing responsibility for this under the AG’s office, simply cannot apply to witnesses to last year’s violence — at least if we value their lives.
In short, the supposed decision implies nothing less than a repudiation of the mediation agreement.
A repudiation of the CIPEV report. A repudiation of the very notion of rule of law.
We must not accept this appalling stand in favour of impunity. We must insist that the ICC’s prosecutor reject it when he is reported to in September.
We must insist that the ICC commence its own investigations — with or without referral by the government of Kenya, on the initiative of the prosecutor himself.
The victims and survivors of the violence deserve more than this.
The supposed decision acts as though they do not even exist — but they do. They do. And the ICC must stand for them since our own Cabinet clearly does not.
L. Muthoni Wanyeki is executive director of the Kenya Human Rights Commission