Rejection of Waki's advice paved way to ICC process

By Lillian Aluanga

Kenya’s appearance at the ICC has been directly linked to a failure to fully implement key components of the National Accord.

The appearance of Deputy Prime Minister Uhuru Kenyatta, Public Service head Francis Muthaura, former Police Commissioner Hussein Ali, suspended Higher Education Minister William Ruto, former Industrialisation Minister Henry Kosgey and radio presenter Joshua Sang, at The Hague, has been viewed as an indictment on the political leadership for failing to follow through pledges made during formation of the Coalition Government in 2008.

The rejection of Bills tabled by former Justice Minister Martha Karua, in 2009, and subsequent unsuccessful efforts by her successor Mutula Kilonzo and the two principals to rally legislators on the matter set off a chain of events that have put Kenya in the limelight for all the wrong reasons.

Race against time

Although the immediate goal of stopping the violence and restoring fundamental rights and liberties as itemised by Agenda 1 was achieved, a key recommendation of the Justice Phillip Waki-led Commission on establishing a local tribunal to try post-election violence suspects was lost in the din of political bickering.

"Among the commission’s recommendations was that should the Government fail to set up mechanisms for establishment of a local tribunal then the material gathered would be forwarded to the ICC prosecutor," says International Centre for Policy and Conflict Executive Director Ndung’u Wainaina.

A subsequent deal signed by the two principals in December 2008 to implement recommendations of the Waki Commission also came a cropper.

Wainaina also takes a swipe at the African Union for endorsing ‘a partisan position’ on Kenya’s ICC case despite having given the country up to the court.

"It was the African Union through the Panel of Eminent persons that helped negotiate a coalition government. This subsequently led to formation of the Waki Commission. In essence it was the AU which allowed material gathered by the Waki team to be handed over to the ICC," Wainaina says.

While the plight of IDPs as encapsulated by Agenda 2 has been partially addressed, resettlement has been fraught with challenges on a matter that has been heavily politicised.

Moribund committee

Under Agenda item 3, which dwelt on the power sharing arrangement between coalition partners, a skewed sharing of jobs in public service and moribund committee formed to resolve disputes within the coalition has done little to ease suspicions in Government.

But it is perhaps Agenda 4, which contains the bulk of reform issues, that if implemented earlier, could have saved Kenya from the ICC.

"The National Accord was clear that among key issues that had to be tackled was the search for truth and justice following the events of 2007," says Mars Group Executive Director Mwalimu Mati.

But beyond the search for justice was the need for constitutional reform as well as changes in key institutions such as the Judiciary, civil service and police force.

"We did well in passing a new Constitution, but that wasn’t all we had to do," says Mati.

That implementation of the new Constitution has run into hurdles is not in doubt, but telling signs of the rockier road ahead are evidenced by disagreements among coalition partners on the reform agenda.

Eight months after promulgation of a new Constitution, the country is yet to get a new chief justice and director of public prosecutions. Earlier nominations made by President Kibaki were withdrawn after Prime Minister Raila Odinga said he had not been consulted.

Legislation to vet judges and magistrates has been passed but the exercise is yet to begin even as the Government, in its request for a deferral of the ICC cases, alludes to the setting up of a local tribunal in coming months.

Deferral bid

The rejection of Kenya’s deferral bid by the UN Security Council dealt a further blow to the Government’s efforts to save the six suspects from appearing at the ICC, even as it rues lost opportunities in setting up a local mechanism.

Also under Agenda 4 was the consolidation of national unity and cohesion, which birthed the Truth Justice and Reconciliation Commission. This too has not been spared intrigues that have slowed its operations, with chair Bethwel Kiplagat forced to face a tribunal investigating his past conduct.