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Justice for post-election violence violence lies in local tribunal

COMMENTARY
By | April 17th 2010

By NETO AGOSTINHO

A couple of weeks ago, the International Criminal Court allowed Chief Prosecutor Louis Moreno Ocampo, to conduct local investigations.

The judgement brought a lot of excitement in the hearts of the victims as well as to political opponents of the persons whose names are believed to be in the Waki envelop. The court contends that a crime has been committed in Kenya and they hope the crimes would be admissible to the court. This judgement at a close look however does not offer much for victims of post-election violence and only gives them hope in some justice that with time they would realise is elusive.

The content of the supporting documents submitted to the ICC thanks to the Waki and Kenya National Commission on Human Rights reports with regard to post-election violence, reveal heinous crimes that should be punished.

The allegations of forced circumcision, gang rapes, maiming, arson attacks, and the brutal killings do not make good reading especially in a nation that had not collapsed and had persons in charge of the police and internal security organs.

The prosecutor’s period of the investigation was stretched to June 1, 2005, to November, last year, well beyond what he had requested for, being the period of post-election violence.

It is possible to state in Kenya that crimes against humanity have occurred during times within ICC jurisdiction – from the time that Kenya became a signatory to the ICC statute. Unfortunately these crimes do not stretch to the post-election violence period and point at other actors, the police and the military as opposed to the politicians.

In Mount Elgon, being joint police – military operation, the police killed 405 members of the Sabaot Land Defence Force. Most of these acts occurred outside the post-election period, and the only one during the post-election violence is the shoot to kill policy that is conducted by the police. This will leave out the perpetrators, financiers and planners of post-election violence.

The Government will have to defend itself for the acts of the military and the police, the question that then would need to be answered is where command responsibility lies within Government.

re-introduce bill

So whereas investigations and possible indictments could be made with regard to Kenya, for those who lost property, loved ones, and got displaced during the post-election violence, it is most unlikely that the ICC process brings any respite.

Parliament needs to re-introduce the Bill that seeks to establish a local tribunal to investigate post-election violence. Politicians need appreciate that their opponents will not be tried at The Hague and it is in their best interest if at all they believe that justice needs to be done to pass the local Tribunal Bill. There is however a problem since there is so much mistrust and lack of faith in the current judicial system that even an independent tribunal evenly constituted would not attract confidence. There is therefore the need to pass the new constitution, have a purge on the Judiciary and from there proceed to constitute a local tribunal to give justice to the victims of post-election violence otherwise we risk having the perpetrators go unpunished with a consequent cycle of violence come the next election.

The writer is a lawyer and Human Rights Consultant.

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