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Co-operation with ICC is not optional

By | October 5th 2009

Justice Minister Mutula Kilonzo’s response to a challenge The Standard made on Thursday affirmed our understanding of the resolutions Cabinet ministers made on July 30.

The Government, he said, will co-operate with the International Criminal Court to try the key suspects in post-election violence.

As at the signing of the ministerial agreement in Geneva that set a September 30 deadline for setting in motion the creation of judicial mechanisms, this co-operation extends as far as formally referring Kenya’s case to the ICC. This means not just waiting for the Chief Prosecutor, Luis Moreno-Ocampo, to act of his own accord. With the passing of the September deadline, and no tribunal in sight thanks to rabid oppositi-on in Cabinet and Parliament, Mr Moreno-Ocampo pledged to haul the key suspects before judges at The Hague to make Kenya "an example on managing violence".

The prosecutor also threw his weight behind the three-pronged approach suggested by civil society, international groups, diplomats and others: Hague trials for the worst offenders, a special tribunal for crimes against humanity the ICC won’t try and a raft of other mechanisms, judicial and non-judicial for lesser crimes.

We trust his visit to Kenya this month, as well as that of mediator Kofi Annan, will result in concrete signs all aspects of this approach are being pursued. While Cabinet also resolved to "accord priority to reconciliation", it must not mistake this to mean defence or protection of anyone who has earned their way to The Hague.

Arrests and extraditions

Reports suggest the prosecutor’s list includes four names, one State official and three Cabinet ministers. This is far short of the dozen or so fingered by the Commission of Inquiry into the Post-Election Violence (the Waki Commission). The State’s promise to co-operate with the ICC should mean arrests and extradition if or when this becomes necessary.

This doesn’t do away with the need for a special tribunal or any other judicial mechanism to deal with post-election atrocities. The Government’s promise to "carry out extensive reforms of the Judiciary, Police and the investigative arm of Government" to make trials in ordinary courts possible, is apparently, Kenya’s best bet. Parliament seems too compromised or caught up in defence of its ethnic constituencies to rally behind an opportunity presented by the Bill by the Imenti Central MP, Mr Gitobu Imanyara. Should it surprise us and do so, however, then Cabinet will have no excuse.

Apart from 1,133 killings, unnumbered mutilations, rapes, arsons and so on, there are numerous crimes of a lesser nature for which non-judicial measures will ‘work’.

Distinguishing these from crimes against humanity, acts of impunity we cannot turn a blind eye to, is everything.

The storm of anger and criticism that greeted Kilonzo’s assurances of support for ICC actions shows the forces of impunity are prepared to fight on. The accusations he was lashing out after being thwarted on the special tribunal Bills or over the Justice Aaron Ringera saga are laughable: Cabinet cannot back away from its collective responsibility to tackle impunity merely because the hypothetical has become an almost certain eventuality.

Dr Alfred Mutua is right when he says the setting up of a special tribunal is not part of the Agenda Four items. But addressing imp-unity was. Bringing the perpetrators of the violence to justice was spelt out in Agenda Two as a most immediate measure. The passage of time and political opposition, however, do not make it any less urgent. All unfinished business of the Kenya National Dialogue and Reconciliation agreement is Agenda Four. None of it should be pushed aside to improve performance grades on reform.


The day is fast coming when the commitment of this Government to tackle impunity will be tested. The promises made easily and now being inched away from by some must be kept. The desire to "temper justice with forgiveness" should not lead to tampering with the mechanisms of justice meant for those bearing the most responsibility. Doing so will not lead to reconciliation, merely enable future atrocities.

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