The announcement by the Directorate of Criminal Investigations (DCI) that the State would reopen the 2008 post-election crime files came as a surprise to many people. The question that must have dominated their minds is "why now?’’ Why 12 years later?
Notably, over 1,300 people were killed in several parts of the country and an estimated 600,000 others displaced in the violence, the culmination of an acrimonious electioneering process that pitted President Mwai Kibaki and opposition leader Raila Odinga.
The violence was so vicious that the entire world was worried that a country that had enjoyed relative peace was on the verge of a full-scale internecine civil war. This prompted the international community to rush to Nairobi to try and cool down matters.
The highlight of the conflict was the burning of 34 women and children who had sought refuge at a church in Kiambaa, Uasin Gishu County.
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Efforts, both local and international, were made to address the situation. However, while the political elite and their supporters got a political solution through power sharing, victims of the violence are yet to get justice.
Although there were efforts to resettle internally displaced people and give them token compensation, the known forms of transitional justice were ignored or were too hot to handle. Consequently, the political settlement between communities was cosmetic; some sort of politico-judicial make belief.
Transitional justice consists of both judicial and non-judicial processes and mechanisms, including prosecution initiatives, facilitating initiatives in respect of the right to truth, delivering reparations, institutional reforms and national consultations.
Any of the above cannot be construed as a stand-alone mechanism as whatever combination is chosen must be in conformity with international legal standards and obligations.
There are those who claim that communities forgave each other and moved on! These are majorly people who did not have direct victims of the violence and so the suffering of the victims is far much removed from them as they only read about it in newspapers or social media.
There are different categories of victims. There are those who were killed; 1,330 or more. These are people whose lives and dreams were shattered for no good reason as they never mismanaged the elections. Some of them, including children, never participated in the elections — but they were killed.
There were those who were assaulted, occasioning serious bodily harm. Some sustained permanent physical injuries like the man from Kericho-Borabu border whose hands were chopped off.
There were those who were rendered orphans after their parents were killed. There were those who were rendered homeless after their land was taken by force by their neighbours. However, all these victims have a common denominator; their assailants — known as they are — have never been brought to justice.
Back to the question "why now?" First, those who are nurtured in law and justice would dismiss that question as mute! Mute in the sense that criminal liability is not subject to limitation period.
Neither is it tied to the political calendar of a State. It is not even tied to weather conditions. A criminal file can gather dust for decades but once evidence is gathered and the culprit is apprehensible, the State can breathe fresh life into it.
Nazi war criminals were prosecuted robustly regardless of when the offences were committed. The Rwanda perpetrators of the 1994 genocide are still being prosecuted and Felicien Kabuga, one of the most wanted suspects, was arrested in May this year.
Arguments that communities forgave each other must be treated with the contempt they deserve as they are obscurantist to say the least. Communities do not suffer criminal consequences. Members of a community suffer and justice is to be served on individuals and not the nebulous concept of a community.
Secondly, we must discourage and warn ourselves from hiding impunity in the general population. Dragging the name of communities in something that is purely personal is convoluting issues.
Before accusing DCI George Kinoti of opening up healed wounds, we must pose and ask; when were the wounds treated? Who treated them? What was used to treat them? Can the political elite move on on behalf of the victims?
-Mr Suyianka is a litigation Counsel at Katiba Institute and a member, Media Complaints Commission