The ball is now in the ICC’s court

By Lukoye Atwoli
(Edited version published Sunday Nation 12 July 2009, page 31)

Until a few days ago, the Kenya government had created a perception that the International Criminal Court (ICC) prosecutor had, with the agreement of Kofi Annan, granted the Kenya government an extension as they seek to set up a local tribunal to try the perpetrators of Post-Election Violence. The minister for Justice, National Cohesion and Constitutional Affairs had even declared on National TV that the government “is no longer bound by the provisions of the Waki Report”.
After Kofi Annan delivered the sucker punch with a mid-week declaration that the infamous Waki envelope had been handed over to the ICC, politicians have been struggling to come up with a cogent response. The height of irony is that so much time and energy had been spent discussing the operationalisaton of the Waki report, that the government’s declaration that the report would just be trashed like several others before it ran counter to all logical reasoning.
The Waki proposals were made within the ethno-political context of Kenya as it was last year and continues to be today. The situation is such that some of the perpetrators occupy positions at the very pinnacle of power in this country, and it would be difficult to prosecute them without requiring a reconstitution of government or a change of the law to remove real and imagined immunities from these politicians.
The Waki team must have realized that just making recommendations and leaving them to the Principals and their minions to implement would have resulted in more of the same inertia that met the production of numerous other Commission Reports since independence.
It was in recognition of this reality that the team wisely recommended that if the government demonstrates unwillingness or inability to move forward with a local tribunal, the ICC at The Hague would automatically be involved. The chief mediator, Kofi Annan, was given the simple role of custodian of the envelope with the perpetrators’ names until the ICC provisions kicked in.
Kenyan politicians, in their wily fashion, somehow managed to expand Kofi Annan’s role by giving him the mandate to vary the Waki deadlines and decide for himself when to hand over the envelope to the ICC. Indeed until a few days ago the warlords were convinced that they had won a major victory over those that continue to demand justice for the crimes committed against the nation and the people of Kenya. As double insurance, the government had even decided to go over Kofi Annan’s head to the ultimate recipient, Mr. Luis Moreno-Ocampo at the ICC.
The belief by the politicians that they had been granted an extension by the ICC, and the resultant chest-thumping about ‘no longer being bound by the provisions of the Waki report’ are indications of just what sort of nonsense to expect if we leave the process to our government and the political class . The Waki report did not envisage any role for the ICC prosecutor except to receive the envelope and move on from there on the assumption that the Kenya government had failed to prosecute the perpetrators.
By handing over the envelope to the ICC, Kofi Annan has tacitly indicated that he has lost faith in the ability of the government to form a credible local tribunal, and in belatedly following Waki’s prescription, he has left the matter in the hands of the ICC prosecutor.
Outside of the political arena in this country, everyone agrees that crimes of a magnitude that falls within the jurisdiction of the ICC were committed after the last general election. Almost everyone agrees that our legal justice system as currently constituted lacks the capacity to successfully try these crimes, and the evidence abounds in the hundreds of thousands of pending cases involving petty crimes littering our corridors of justice.
Insisting on a local tribunal or other judicial processes is therefore a transparent attempt to give the political class an opportunity to cleanse themselves by influencing the process to come up with findings favorable to them. Instructively, many politicians have even dismissed the local tribunal as an arena for witch-hunts and ‘fixing’ political opponents.
The move by Kofi Annan and his team is therefore commendable, though late in coming, and the ball now shifts to Moreno-Ocampo and the ICC. It is unacceptable that months after the Waki team examined the evidence and made valid recommendations, the implementation process remains mired in political grandstanding and intrigue.
The top potentates, including the so-called principals, must not rest easy thinking that Kenyans have forgiven them or forgotten the suffering they went through last year. The buck stops with them, and even if it takes a hundred years, the truth about the nonsensical killing spree we endured last year shall finally be laid bare.