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Kenya: Parliament rejects special tribunal

NewsNotes, March-April 2009

On February 11, Kenya’s Parliament rejected an amendment bill to establish a Special Tribunal to try in Kenya the suspected organizers and financiers of last year’s post-election violence. Last year’s violence caused 1,133 deaths, over 300,000 internally displaced people (IDPs), and a loss of at least $1.5 billion to the national economy. So far no one has been arrested for any of last year’s carnage.

To pass, the proposed amendment needed 145 votes in the 222-seat parliament, two-thirds of the full assembly, but received only 101 votes. Despite the unusual presence of President Mwai Kibaki and Prime Minister Raila Odinga, who are both Members of Parliament (MPs), to spur their colleagues to affirm the bill, 27 MPs did not vote by avoiding Parliament that day, and many members of Kibaki’s Cabinet voted against the bill. The Special Tribunal was supposed to be convened by March 1, which is not possible without an amendment enshrining it in the constitution. Absent a tribunal in Kenya, Kofi Annan, chairman of the Panel of Eminent African Personalities, will turn over the names of the suspects, including five Cabinet ministers, six other MPs, and a number of businessmen, to the International Criminal Court (ICC) at The Hague.

The bill was defeated by two different factions in Parliament: First, all Kalenjin politicians, who said that the Tribunal was aimed solely at certain individuals and communities (i.e. Kalenjin), implying that Kalenjin leaders would be allotted most of the blame and guilt. Dr. Julius Kones, a leading Kalenjin MP, also disingenuously claimed that the only purpose of the tribunal was to discredit Kalenjin politicians who might be seeking to run for president in 2012.

The other faction defeating the bill was a group of backbenchers led by Imenti Central MP Gitobu Imanyara, who said, “We do not have faith in Kenya’s justice system, and we want those involved in the violence to be tried at The Hague.” As the bill was going down to defeat, this group was gleefully shouting, “The Hague, The Hague.”

Annan stated, “I am disappointed that the Constitution amendment bill was defeated in Parliament. This is a major setback to the implementation of the recommendations of the Commission of Inquiry into the Post-Election Violence (CIPEV), and a blow at efforts aimed at ending the culture of impunity in Kenya, which is a central objective of the Kenya National Dialogue and Reconciliation process.” He singled out in particular agreements under Agenda Item Four of the National Accord of February 2008, which pertain to long-term solutions to critical issues such as land and the constitutional review.

He further said, “The Panel will now review the actions it should take in line with the spirit, letter and intent of that report.”

It is not certain that the ICC will agree to try the Kenyan suspects, despite ICC Prosecutor Luis Moreno-Ocampo saying last November that the ICC would do it if Kenya did not. The Netherlands’ ambassador to Kenya, Laetitia van den Assum, said, “ICC cases until now have focused on countries that are in serious civil war or emerging from it. Investigating Kenya would definitely be something new for the prosecution. The ICC has notable budget limitations, and right now is focused exclusively on the Democratic Republic of the Congo (DRC) [several militia leaders], Uganda [Joseph Kony and his lieutenants] and Sudan [President Omar al Bashir and others facing charges of crimes against humanity in Darfur].”

If the ICC can’t take on the Kenya cases at The Hague, other options are available. Prime Minister Odinga said, “Defeat of the government bill is only a temporary setback. The government is still determined to set up a local tribunal. Those pushing for The Hague option are merely delaying justice.”

On Feb. 16, MP Imanyara made another proposal: that Kenya adopt the Sierra Leone model of trying suspected organizers of violence by requesting the UN to set up and run a special international tribunal within Kenya to prosecute perpetrators of the 2008 violence. The MPs who opposed the Constitutional amendment bill are considering a recommendation that Parliament pass a motion urging the foreign affairs minister to petition the UN Security Council on this matter.

Annan said that he will consult with Kenya’s president and prime minister and with the other members of the Panel of Eminent African Personalities. He may take the case to The Hague, or he may follow the example of Sierra Leone, and use UN headquarters -- the UN Environmental Program (UNEP) is located on the outskirts of Nairobi -- to establish a Special International Court in Kenya. Another possibility is to use the special court that was set up in 1995 in Arusha, Tanzania, only a four-hour drive from Nairobi, to try perpetrators of the Rwanda genocide.

Dissatisfaction with the current government in Kenya is growing to alarming proportions. Corruption almost seems to be getting worse, with the most recent manifestations being the sale of government maize to Sudan for private profit while a reported 10 million Kenyans are facing severe food shortages and the embezzlement of government payments to an oil company, which caused a huge fuel shortage. In February British investigators cancelled their investigation of the 2003 Anglo Leasing Scandal because Kenya's government refused to cooperate in the investigation. (The Anglo Leasing Scandal refers to 36 Kenyan government payments amounting to $800 million to the overseas accounts of politicians closely allied to President Kibaki for goods and services that were either non-existent or grossly over-priced.)

In February, the Kenya National Dialogue and Reconciliation Monitoring Project issued a report, saying, “The dominant perception is that after politicians shared power they were not keen to fast track reforms. Comprehensive reforms are a must, and should be seen to be taking place if the country is to avoid another wave of political violence.”

On February 19, at a national prayer service and fund-raising for victims of two horrific fires in February, Christian, Muslim, and Hindu religious leaders publicly castigated the country’s political leaders directly to their face. Each religious leader, of what is called the Inter-Religious Forum, stated the following: “When you joined hands to sign the National Accord, Kenyans expected the best leadership ever. However, Kenyans are concerned that they are witnessing the opposite. You have been reluctant to punish your friends who are greedy; you have neglected the Internally Displaced Persons; you have not acted decisively on insecurity and extra-judicial killings. We call upon the President and Prime Minister to take responsibility for the status of the nation.” Never in Kenya’s independent history have united religious voices issued such a scathing indictment of the country’s political leaders.

In January, Kenya’s Catholic bishops said, “If the allegations of the export of maize by individuals who seem to be above the law are true, then we condemn these as criminal acts and demand appropriate action.”

These forthright statements are indicative of a national consensus that matters must change immediately, especially the culture of impunity. Perpetrators of violence and corruption must be brought to justice. Although the citizenry’s national anguish continues, the circle of justice is steadily tightening about those who thought they could avoid prosecution.

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