Ndung'u Wainaina: A Foreign Umpire Is What Tribunal Needs

Serious inte¬national and domestic crimes committed in Kenya against the people during the aftermath of the 2007 elections must never be allowed to escape accountability and wheels of justice.

The lack of political will to facilitate consensus and build confidence in the legal framework and constitutive instruments to establish a Special Tribunal for Kenya led to a devastating defeat of the Constitutional Amendment Bill, 2009, in Parliament.

The International Centre for Policy and Conflict is asking Dr Kofi Annan and the Panel of Eminent African Personalities to consider seeking a United Nation resolution to establish a treaty-based hybrid tribunal for Kenya.

It is critical at this juncture, for Annan and his team to robustly engage directly with the two Principals with view of negotiating an agreement to establish a treaty-based tribunal. The current one is under stranglehold and capture of extreme partisan and divisive political arrogance and interests. An independent umpire is of necessity to guide the process moving beyond where it forestalled.

The establishment of the special tribunal has been hi¬jacked, razed and poisoned by partisan politics, which have turned the whole process into a political exercise at the expense of justice.

A UN resolution would enable Dr Annan and his team to negotiate an agreement with the government to create an effective, impartial and independent tribunal consistent with the recommendations of the Commission of Inquiry into Post-Election Violence. Such a tribunal would command the trust and confidence of the Kenyan people.

It would be based in Kenya, but with the direct participation and supervision of the international community. A purely domestic tribunal established under an arrangement like that agreed to by President Kibaki and Prime Minister Raila Odinga on December 16, 2008 cannot work.

It was a grave mistake to leave the responsibility of forming such a critical tribunal in the hands of the two protagonists without an independent umpire.

Kenya remains a society plagued by violence. An independent, efficient and impartial trial could help establish an understanding of the importance of due process of law to replace the current cycle of impunity and violence. It is also important for people to see that leaders are not immune from prosecution.

Many Kenyans believe that this lack of accountability is one of the most enduring legacies of impunity. Fair and credible prosecutions of the grave crimes committed by state agencies and non-state actors are crucial to entrench accountability and a sustainable peace. Establishing an independent and credible tribunal goes further than bringing justice to the perpetrators of horrendous crimes.

It has a tremendous impact on the justice system in Kenya. If Kenya's Tribunal is established transparently, it could establish incontrovertible truth and provide justice for what happened.

A substantive treaty-based hybrid tribunal for Kenya should be pursued, however, with adequate inbuilt guarantees.

It cannot be controlled by the government, or it would lose legitimacy, as is happening in the Cambodia Extraordinary Chambers. A joint trial between the government and an international legal entity would be legally sound, politically effective, administratively and financially cost-effective and still enjoy high moral standing.

If no quick action to create an effective tribunal is taken, Kenya could lose its chance to bring perpetrators to justice. The biggest threat to security in Kenya is the prevailing culture of impunity.

The periodic cycles of extreme violence that Kenya has undergone cannot be broken unless sufficient political will is demonstrated that perpetrators of gross violations of human rights will be held accountable and made to pay for their heinous acts. The willingness to engage should compel Kenyans to strengthen partnerships to combat impunity and establish justice and the rule of law, thus setting solid foundation for human rights, security and development.

Ndung'u Wainaina is the executive director of the International Centre for Policy and Conflict wainainan@icpcafrica.org or wainaina.n@gmail.com

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