SUBJECT: KENYA ELECTIONS: POLLING MATTERS 

¶1. (C) Our election analysis (reftels) indicates a close race for the presidency.  This analysis is based on voter  registration data and traditional turnout rates as well as  polling on presidential candidate preferences.  We were  concerned that widely published public opinion polls, which  showed ODM's Raila Odinga well ahead of President Kibaki, did  not accurately reflect the true status of the contest.  Given  the rising political temperature, partially due to the use of  blatant ethnic appeals by both sides, we were concerned about  the reaction of ODM supporters should their candidate lose in  a close outcome when they were led by public opinion polls to  expect a landslide victory. 

¶2. (C) The Mission quietly reached out to polling firms and  their clients to suggest that poll sampling distribution  should be based on the regional distribution of registered  voters, not on raw population (there are wide variances in  voter registration rates around the country, with the high  population density areas, such as Kibaki's native Central  Province, enjoying higher rates).  Polling on this basis  would be a more accurate predictor of the outcome.  When one  polling firm (Consumer Insights) then started limiting its  respondents on political preference polls to those who could  produce an actual voter identification card, the change was  dramatic: Odinga: 41 percent, Kibaki: 40.6 percent.  Once the  Steadman Group re-distributed their sampling according to the  August voter registration figures, the Kibaki/Odinga gap  shrank from 11 points to 4 points: from 39 percent Kibaki, 50  percent Odinga to 41 percent Kibaki, 45 percent Odinga.  

¶3. (SBU) The Electoral Commission of Kenya has now published  the final voter registration figures.  The major polling  firms have all committed to adjust their sampling according  to these figures and limiting responses to those who at least  claim to be registered voters.  The results of polls based on  sampling that reflects the final voter registration figures  will be available in about two weeks.  

RANNEBERGER

Yesterday the International Criminal Court at The Hague reduced the “Ocampo Six” to the “Ocampo Four”.

It confirmed charges against four of the six Kenyans charged with crimes against humanity following the 2008 post-election violence.

Deputy Prime Minister and minister of Finance Uhuru Kenyatta, former Higher Education minister William Ruto, Head of Civil Service Francis Muthaura, and Kass FM programmes chief Joshua arap Sang might have to defend themselves at the court.

Former Police chief Maj-Gen Hussein Ali and suspended Industrialisation minister Henry Kosgey were let off the hook.

The four are appealing, and the ICC Chief Prosecutor, as he usually does, will probably appeal the decision in favour of Mr Ali and Mr Kosgey.

Whatever happens, all the four were merely players in the great political drama of Kenya that will continue years after they are off the political scene and have been forgotten.

This is because one of the many ways to understand the ICC case is to reflect on the big Kenyan drama.

Kenya’s history of the last 100 year has produced several key currents, which all played out in the ICC case. Two of them were on play yesterday.

British colonialism and white settlement was particularly devastating for Central Kenya. They
resulted in massive displacements of the people from their land and an intense cultural struggle that led to founding the first independent churches in Africa and the bitter Mau Mau rebellion.

From an outsider’s reading of Kenya’s history and discussion with the more reflective individuals
from Central Kenya today, this history has produced, first, a near permanent millennial movement in the Mountain region (which the outlawed Mungiki sect that was allegedly mobilised by Uhuru for attacks in the Rift Valley loosely represents).

Secondly, it makes the colonial experience a deeply felt form of invasion for Central Kenya. It seems to drive the region to hanker for a Messiah, a Saviour who will restore to the children of the House of Mumbi the lands of their ancestors.

The Mountain region has never really found the perfect Messiah. In some ways Uhuru seemed to fill that void during the height of the chaos.

Whether Uhuru survives or not, the current that propelled him to power will not die out. There will likely be more Messiahs from Central Kenya, and there will be a lot more successor movements to Mungiki.

The other side of this complex tango is in the Rift Valley. While the Central Kenya psyche is both
driven and distorted by alienation, the Rift Valley’s is fuelled by dispossession.

From wherever colonialism displaced Kenyans, it seemed to send most of them to the then vast and fertile hills and valleys of the Rift.

The notion that the “immigrant” Kenyans were pioneer Internally Displaced Persons (IDPs) who
would eventually go back when calm returned to their villages, and return the places they had settled back to the “rightful owners” seems to have been bubbling underneath the Rift Valley for decades.

There is an inescapable sense of self-righteous right to repossession one gets from even the most
left-wing liberal Rift Valleyian when it comes to the region’s land, and the place of the other Kenyans who settled there.

Whether or not they see themselves that way, people like Ruto have about them the appeal of a Robinhood. Designer rebels crusading to repossess the commons for their people, who have been driven to suffer in the woods by grabbing outsiders.

For this historical reason, there is now in Rift Valley a market for a heroic Robinhood, a protector of the Nilotes’ pastures against acquisitive Bantu hordes.

twitter: @cobbo3

Some believe court must bolster activities on the ground to counter politicisation of cases.

By IWPR contributor

Amid an intensifying campaign by supporters of six senior public figures facing charges at the International Criminal Court, ICC, the Kenyan government is being accused of frustrating the court’s outreach efforts inside the country.

Meanwhile, questions have been raised about the success of the ICC outreach programme, and about whether its intervention in Kenya has been sufficiently robust.

Local and international rights groups say that while the ICC started its outreach programme in Kenya at a fairly early stage, the delay in establishing a permanent local office left a gap that has been exploited by politicians allied to some of the suspects.

There is also concern that the ICC outreach unit is not receiving the political support it needs to help correct gross misconceptions about the court’s work among communities affected by the post-election violence of 2007-08.

At least 1,100 people died and 3,500 were injured during two months of violent unrest that followed a disputed presidential election in December 2007.

The court has charged six prominent figures, including deputy prime minister Uhuru Kenyatta and former education minister William Ruto, with crimes against humanity for their alleged role in planning the attacks.

Two cases have been filed by the prosecutor, with three suspects in each.

The deputy head of the Kenyan National Commission on Human Rights, Hassan Omar Hassan, says a section of the Kenyan government has been deliberately blocking the ICC’s attempts to give the public accurate information about matters relating to the two cases.

“We raised concerns about [outreach activities] from the outset, after we realised that political actors involved in the two cases were misinforming the public on the impact and consequences of the initial appearances and confirmation of charges stages [of court proceedings],” Hassan said.

The court’s outreach activities started in Kenya in December 2009 after the prosecutor, Luis Moreno-Ocampo, requested authorisation to launch an investigation into the 2007-08 violence. The outreach office was not set up until August this year, following a visit to Kenya by the ICC’s registrar, Silvana Arbia.

The International Centre for Policy and Conflict, ICPC, a Kenyan non-government organisation working on transitional justice and conflict resolution, says the ICC’s failure to establish an outreach office as soon as the investigation started meant local organisations were forced to step in, more often than not without adequate resources.

“Many NGO’s have received threats after being seen to be working closely with the ICC,” the ICPC’s executive director Ndungu Wainaina said.

Experts say that outreach activities alone are not the ultimate solution to the mass of misinformation and politicisation surrounding cases before the ICC, but they can help to counter the problem.

“We cannot say that outreach will automatically cure the politicisation, but it can make it harder to do that because if your everyday person on the ground already has information about the ICC process – that it is an independent judicial process – then it will be hard for people who want to spin it as a biased process to make their argument,” Elizabeth Evenson, senior counsel at the New York-based advocacy group Human Rights Watch, said.

Both of the Kenyan cases at the ICC involve high profile politicians, as well as the country’s former police commissioner. The ICC’s outreach coordinator in Kenya, Maria Mabinty Kamara, says these high-profile cases have attracted great interest in the court’s workings, but at times also misinformation.

A failed attempt by Vice-President Kalonzo Musyoka to lobby other African countries to support a deferral of the Kenyan cases is seen by some as a clear example of how the government is trying to undermine the ICC’s mandate.

President Mwai Kibaki has also been seen as taking sides by writing to ICC judges in a bid to exonerate one of the suspects, civil service chief Francis Muthaura, during the recent confirmation of charges hearings.

“This is a clear example of how the government does not in any way support the ICC,” Wainaina said.

Kenya’s justice minister Mutula Kilonzo admits the government is walking a tightrope – it is aware of the propaganda put out about the ICC cases, but is reluctant to engage in civic education for fear of being misunderstood, or accused of bias towards either victims or suspects.

“My mandate is to the victims and to the suspects,” he said. By engaging in civic education it might be construed to mean I am supporting one side [over the other] which is [far] from the truth,” Kilonzo said.

He strenuously rejected charges that the current coalition government, formed after the clashes ended in 2008, is itself hampering ICC outreach efforts.

“Those making such allegations are busybodies who don’t understand what the government has done in terms of cooperating with the ICC. We have agreed to all requests by the ICC registrar, including granting visas for their staff and facilitating the setting up of an office here in the country,” he said, noting that a special cabinet subcommittee had been set up to liaise with the court.

Amason Jeffa Kingi, another cabinet minister and a member of the ICC liaison subcommittee, disagreed. He said there were people in the cabinet who were obstructing the ICC process with a campaign to smear the court.

“While the position of the coalition government is that we will cooperate fully with the ICC, as demanded of us by the Rome Statute [the founding treaty], it is however unfortunate that some senior individuals in government issue statements that [call] into question the mandate of the ICC,” Kingi said.

Justice Minister Kilonzo acknowledges that there are deep-seated differences between the coalition partners regarding support for the ICC. After the suspects were named by the court, some officials publicly called on President Kibaki to withdraw Kenya from the Rome Statute. Kilonzo says such statements have sent out contradictory messages to the public as to whether the government fully supports the ICC.

In terms of outreach on the ground, some parts of Kenya that bore the brunt of the violence are barely aware of the court, despite outreach activities that began more than a year ago.

At the Mawingu Camp where more than 1,000 displaced families are still living three years after the violence, people say they have not seen any of the court’s officers in the area.

“We have been waiting to see these officials and talk to them, but none have been here so far. Politicians come here and demonise the ICC, and we have so many questions but no answers are forthcoming from Ocampo and his team,” Rose Wanjiku, chairperson of the Mawingu Camp, said.

The outreach office says it faces financial challenges and cannot do everything expected of it all at once. “Most of the funds we had were directed to media initiatives, but it is not as much as we would have liked,” Kamara said.

Nevertheless, she says, the outreach office has been able to engage with some local NGOs, media and leaders of affected communities to promote a better understanding of the court process.

The ICC office has yet to start the next phase of outreach activities, which will be aimed at explaining what the outcome of the confirmation of charges hearings means, correcting misconceptions, and addressing the expectations of victims and the wider Kenyan public.

“The Kenyan case is one of the earliest interventions in terms of outreach initiatives,” Kamara said. “Unlike other situations where it took a lot of time before the [ICC’s] outreach programme was initiated, for Kenya we have been closely working in line with the judicial process.

Right from the outset when the prosecutor launched investigations, we closely followed what the media was reporting, and we realised the level of inaccuracies that needed to be addressed.”

The ICPC says the ICC office will have to engage with the public much more effectively if its outreach activities are to have any impact amid the challenges that face the court.

“In Uganda and Democratic Republic of Congo there has been a robust and open engagement of the victims. But in Kenya the situation has been completely different. One reason why there is so much misinformation is because the outreach unit [of the ICC] has not been very proactive in providing information to the general public,” Wainaina said.

Human Rights Watch has praised the ICC for setting up an outreach office in Kenya at a relatively early stage compared with other countries where the court has charged suspects. It believes the challenge now is to ensure that the office builds on some of the lessons learnt from earlier efforts elsewhere.

“We acknowledge that there are of course security challenges, but the team must now start having face-to-face meetings in places that were most affected by the violence,” Evenson said. “The Kenyan team can learn from the Democratic Republic of Congo where the ICC has initiated listening clubs among womenfolk. These clubs have had a huge impact in informing and stimulating debate among the public.”

Other international human rights groups such as the Open Society Justice Initiative believe that the ICC outreach team in Kenya does not need to look far for lessons on how to carry out a successful programme.

“Sierra Leone was a huge success. It successfully engaged Sierra Leoneans about the work of the court generally, and the trial process,” said Alpha Sessay, of the Open Society Justice Network. “The Sierra Leone model can successfully be adopted by the Kenyan outreach team as it is largely acknowledged as a blueprint for how such courts can work with the community.”

Kamara says the outreach office is expecting more funds soon to conduct what she calls a “massive mass outreach campaign” to prepare the ground for the verdict of the confirmation of charges hearings.

“One of our greatest challenges will be to manage the huge expectations of the public regarding this phase of the Kenyan case. We will have to clarify what the court can do at this stage, and what it cannot do,” she said.

Police insist they will continue looking into alleged abuses despite concerns about lack of capacity and political will.

By IWPR contributor

Campaigners seeking justice for the perpetrators of Kenya's 2007-08 post-election violence have raised serious concerns about the way the national police force has investigated cases, amid allegations of government interference.

The Kenyan police say they are actively investigating 400 out of 6,000 reported cases stemming from the violence.

At least 1,100 people died and 3,500 were injured after a presidential election in December 2007 as violence erupted between supporters of the Party of National Unity, PNU, and the Orange Democratic Movement, ODM, which are now in a coalition government.

Rights groups say that the police investigations lack credibility and that the parties allegedly behind the chaos have colluded to circumvent justice.

"Our investigations have revealed that a huge number of youths who were being held in police cells for various crimes related to the violence were released unconditionally after a deal was struck between the PNU and ODM," Neela Ghoshal, a researcher with the New York-based advocacy group Human Rights Watch, told IWPR.

The allegations have been strongly denied by government spokesman Alfred Mutua, who says no such agreement ever existed.

"Anyone who was set free at that time was released by the courts. When a crime is committed, you cannot decide its outcome using politics,” he said.

But government chief whip Johnstone Muthama acknowledges that such a deal was made, although he accepts this was ill- advised.

"It was wrong for those who were arrested to have been released without following the due process of the law," he said.

Six prominent public figures, including the deputy prime minister, Uhuru Kenyatta, and former education minister, William Ruto, have been charged with orchestrating the violence by the International Criminal Court, ICC, in The Hague.

The international community has called on Kenya to prosecute middle- and lower-level figures accused of involvement in the violence, and try them at a special tribunal in Kenya as they will not be brought before the ICC.

Legal experts are calling for investigations to be halted until much-needed reforms of the police force are carried through. Kenya's new constitution, voted into law in August 2010, provides for such reforms.

"No one has got any confidence that [this police force] can carry out credible investigations or prosecute anyone [for post-election violence]. We have to wait for police reforms," Paul Muite, a human rights lawyer and former legislator, said.

Kenya's director of public prosecutions, Keriako Tobiko, says that even as police pursue the 400 ongoing investigations, 550 more have already reached court. However, he concedes that some of these cases have been thrown out.

"Of the 550 cases taken to court, 258 have been concluded and the accused persons found guilty and sentenced. However, 87 suspects were acquitted due to lack of evidence while a further 138 cases were withdrawn," Tobiko said.

Rights groups have raised concerns as to whether the cases are being investigated properly and fairly.

"There are serious problems with police investigations," Ghoshal said. "Victims, magistrates and state counsels have all expressed dissatisfaction at police investigations of these cases. We have had instances where police have failed to carry out identification parades, police files have gone missing or were lost, and the list [of irregularities] is just endless."

In a report released on November 9, Human Rights Watch questions whether the cases cited by the department of public prosecutions are in fact related to the 2007-08 violence.

"After visiting most of the law courts where these cases were heard, we believe that only ten cases that the [director of public prosecutions] claims are before courts are actually related to the violence," Ghoshal said. "But at least two murder cases in Nakuru and Kericho towns that were related to the violence resulted in convictions."

The report also underlines that no member of the Kenyan police has been brought to justice for the violence, despite an estimated 962 police shootings and dozens of rapes in the aftermath of the 2007 election.

It is unclear why information about ongoing and completed cases is not readily available.

Florence Jaoko, chair of the Kenya National Commission on Human Rights, said attempts by organisations like hers to receive updates on the investigations have proved futile.

"These investigations are not genuine, as it has taken over four years for them to begin," she said. "At the local level, we have never had information on such cases. It is important for the state to give that information to the public, if at all they are investigating them."

Soon after the violence, Jaoko’s commission released a report called “On the Brink of the Precipice” accusing several high-ranking former and serving politicians of being behind the violence.

Jaoko says these individuals are among those who should be prosecuted in Kenya, if the authorities are "really serious [about] fighting impunity".

Some argue that the police cases are merely a publicity stunt aimed at persuading the ICC to hand back the six suspects to be tried in Kenya.

"There is no evidence that these cases are genuine," said Ghoshal. "They are but a show in front of the International Criminal Court to try and convince them that the Kenyan authorities are doing something about the violence."

Earlier this year, Kenya sought to convince the ICC that it was prosecuting cases of post-election violence itself, and that there was no need for the court put the six suspects on trial. Judges in The Hague rejected the appeal.

In August, two of the six suspects facing charges at the ICC recorded statements with Kenya’s criminal investigations department, which said it was conducting parallel investigations to those at the international court.

Former cabinet ministers Henry Kosgey and William Ruto recorded statements just weeks before appearing at the ICC for confirmation-of-charges hearings in September.

The Kenyan police reject claims that their efforts are not genuine, though they admits that the investigations have taken longer than anticipated. They say they will not back down from investigating the cases, most of which involve alleged lower-level perpetrators of violence.

"These [investigations] must of necessity be a slow process, but with persistent and professional handling I know we shall get there. We can't sit back and let people who killed others and danced before the cameras walk away. They have to be prosecuted," police spokesman Eric Kiraithe said.

The chairman of the National Task Force on Police Reforms, retired judge Philip Ransley, supports investigations wider than those at the ICC. But he says the police force as it is currently constituted is unable to carry out these investigations.

"I expected police reforms to be well under way by now, but obviously they are going to take some time to complete. The criminal investigations department would have been better suited to investigate these cases, but until the reforms are under way, they cannot do very much," Justice Ransley said.

The task force he heads was appointed by President Mwai Kibaki in May 2009, following recommendations by a national commission of inquiry into the violence, chaired by Justice Philip Waki.

Tobiko, the director of public prosecutions, rejects claims that ongoing cases are just meant to impress the ICC, and says they will go on irrespective of the outcome of confirmation-of-charges hearings in The Hague.

In September 2011, Kenya's attorney general Githu Muigai led a high-ranking mission to The Hague to ask ICC prosecutor Luis Moreno-Ocampo to share the evidence he had on lower-level perpetrators. The request was quickly dismissed by Moreno-Ocampo.

Muite says the trip was a clear indication that the police had not conducted any investigations or gathered evidence to prosecute cases.

"The police should stop making these statements, as they are insulting to the intelligence of the Kenyan [people]," Muite said.

On December 5, former justice minister and member of parliament Martha Karua told the Kenya National Dialogue and Reconciliation Conference, chaired by former United Nations Secretary General, Kofi Annan, that no such investigations were ongoing, despite reports to the contrary from the police.

"Almost four years down the line, victims of the 2007 post-election violence are still crying [out] for justice and police are yet to start investigations or prosecute anyone," Karua said.
The Kenyan parliament has twice tried and failed to set up a local tribunal, with most members voting to have the cases taken to the ICC.

Despite repeated calls from rights groups and the international community, Tobiko says that Kenya does not require a special tribunal to prosecute middle- and lower-level suspects.
Kenya has now adopted the legal principles of the ICC's founding treaty, the Rome Statue, into its domestic code, allowing it in theory to prosecute war crimes, crimes against humanity and genocide in its own courts..

"With the reforms going on in the judiciary, I am quite confident that some of the cases can be tried in the local courts without much problem, especially considering that Kenya has enacted the International Crimes Act," Tobiko said.

But Human Rights Watch says the fact that some of the cases "amount to crimes against humanity" makes it impossible for the local courts to deal with them.

"Some of the crimes were planned in one area and then committed in another area. The local courts do not have the capacity to deal with these complexities, despite the ongoing reforms in the judiciary," Ghoshal said.

Pointing to the international support that has been provided to other justice mechanisms implemented in Kenya, such as the Truth, Justice and Reconciliation Commission, Ghoshal said,

"The local tribunal should have international input for them to be credible. At the moment, Kenyan institutions don't have the capacity to prosecute these cases, and they need international help."

http://iwpr.net/report-news/kenyan-police-criticised-over-election-violence-cases

In this part of the world, news of riots in London are surprising and shocking. It is inconceivable that the first world and the godfathers of democracy can turn to riots, violence, looting and hooliganism for any reason at all.

One cannot even imagine that the London metropolitan police is somewhat overwhelmed (and the prison cells full) by the hundreds of young people turning up for the riots.

We are almost getting self-righteous about the whole fiasco. At least we riot for a cause. The Tunisians, Egyptians, Libyans and Syrians are out on the street for a noble cause. What about the London youth? From the international press coverage, one may be fooled to think that the London youth are just in it for the DVD players and 'HD ready, 42" plasma TVs.

However, on digging deeper, the London youth are probably in it for a higher cause. Sample this from Penny Red, a London blogger;

".....

Most of the people who will be writing, speaking and pontificating about the disorder this weekend have absolutely no idea what it is like to grow up in a community where there are no jobs, no space to live or move, and the police are on the streets stopping-and-searching you as you come home from school. The people who do will be waking up this week in the sure and certain knowledge that after decades of being ignored and marginalised and harassed by the police, after months of seeing any conceivable hope of a better future confiscated, they are finally on the news.
.....

Riots are about power, and they are about catharsis. They are not about poor parenting, or youth services being cut, or any of the other snap explanations that media pundits have been trotting out: structural inequalities, as a friend of mine remarked today, are not solved by a few pool tables. People riot because it makes them feel powerful, even if only for a night.

People riot because they have spent their whole lives being told that they are good for nothing, and they realise that together they can do anything – literally, anything at all. People to whom respect has never been shown riot because they feel they have little reason to show respect themselves, and it spreads like fire on a warm summer night. And now people have lost their homes, and the country is tearing itself apart.
...

Noone expected this. The so-called leaders who have taken three solid days to return from their foreign holidays to a country in flames did not anticipate this. The people running Britain had absolutely no clue how desperate things had become. They thought that after thirty years of soaring inequality, in the middle of a recession, they could take away the last little things that gave people hope, the benefits, the jobs, the possibility of higher education, the support structures, and nothing would happen. They were wrong. And now my city is burning, and it will continue to burn until we stop the blanket condemnations and blind conjecture and try to understand just what has brought viral civil unrest to Britain. Let me give you a hint: it ain’t Twitter.

...."

The Kenyan government and leaders should be very worried at this time. In our villages and town estates, there are hordes of young people, idle, jobless, angry, hungry and with nothing to lose. They have pent up anger with everyone and everything. This is our Kenyan time bomb. It is ticking and as political tensions and temperature begins to build up towards 2012 general elections it is bound to blow up if it is mishandled.

Ukiona cha mwenzio cha nyolewa, chako tia maji so says a Swahili proverb (If you see your friend's hair being cut, prepare yours for you are next). With the first world burning, what chances are there for the third world to escape this wealth inequality and leaders callousness judgement?

The plight of the internally displaced PEV victims is an ugly eye sore in the Kenya political landscape. The manner in which the state has dealt with the whole issue is sickening and inept. The recent resettlement debacle at Endebess and Mau Narok should be a wakeup call.
The government should rethink of a better methodology of dealing with the IDP menace otherwise this issue just like unemployment, poverty and general national discontent among the citizens remain a time bomb awaiting explosion
The IDPS are products of selfish political competition and diet of tribalism a delicacy of a click of Kenya's privileged political elites. The thinking that the government can unilaterally buy parcels of land for the victims, hound them in Lorries and transport them to unwelcome areas is misguided and irrational.
This unfortunate policy reminds one of the infamous colonial government Native Removal policies from the white highlands to Native settlements. However the colonialists were better of as they were executing their evil mission within an unpopular frame work of their then laws.

The country's constitution allows Citizens to settle anywhere within the land, however the rights of the inhabitants in specific regions must be respected. The government must avoid engaging in divisive and suspicious policies which overtly seem to provoke local communities in the proposed resettlement areas.
Such communities and their leaders must be consulted before settling IDPs in their regions so that the social economical and political implications of the resettlement can be appreciated. Indeed such openness cultivates mutual trust among a people coexisting together.
The IDP concerns must be addressed under a clear legal frame work as opposed to an amorphous rudderless actions propagated by the Ministries of the Special Programme, Finance and Lands.

The unending blame game between the concerned ministries in regard to availability of funds or purchasable land add no value to the plight of the IDPs.An effective way of resolving the IDP menace must be evolved. The Ministry of Special Programme seems to be a den of opaque policies.
Acts of dishing out money handouts and building materials may be beneficial but cannot effectively tackle the persistent manace.In the past the main beneficiaries of this misguided mission have been dubious characters either masquerading as IDPs and or associates of some corrupt provincial administrators and NGOs.
The office of the Attorney General must formulate a bill for debate and enactment by parliament to address the historic circumstances of the IDPs.The Bill should set standards of determining who qualify to be an IDP, prescribe suitable and relevant remedies to the victims, give directions on the manner of handling assets including lands previously owned by the IDPS among other things.

Indeed there is no reason why progressive members of parliament should not take a similar initiative through a Private Members Bill. Such legislation can establish a special court mandated to invite and adjudicate IDP petitions.
The court should give directions on when and how to close all the IDP camps, prescribe penalties to thieves of the IDP resources and likeminded imposters. The court ought to be limitlessly accessible by IDPs and be without elaborate procedural and technical emphasis.
It should set a reasonable time frame of receiving petitions from those who consider themselves as IDPs.Expidient adjudication of such petitions must be cardinal policy of the court
The special court on basis of the tendered evidence should ably quantify the financial, psychological and social loss of victims and prescribe equitable remedies and compensation.

Relevant NGOs should also court the spirit of seeking a permanent solution to the IDP challenges and liberate themselves from insatiable greed for donations uselessly utilized in rhetorical boardroom seminars on IDP topics.
It is backward to keep on pestering the Government to resettle the IDP while at the same time celebrate proceeds of the menace while administering hypocritical boardroom solutions.
The political class should also stop politicizing the IDP issue for selfish benefits. The IDP issue cannot be solved through political rhetoric's and cheap popularist utterances designed to gain political mirage.
The work of legislators is to enact relevant laws capable of confronting emergent social political challenges in the society. It is not in dispute that enacted laws are the strongest tools for social economic and political change.Harambees and handouts to IDPs may only bring solace for a day.
Buying communal land for victims by the government is ridiculous and makes one smell of a corrupt to benefit certain individuals. The government is the sovereign owner of hundreds of thousands of hectares of land lying idle in various counties.
It is pertinent that the identity of vendors of the resettlement project land be unveiled and costs of logistics thereto be disclosed. The government must respect the victim's right to settle where they would want to buy lands and the quantification of the terms of compensation should be determined through evidence in a special court.
The standard form of such compensation to the IDPs should be monetary. Upon compensation an individual IDP should be free to buy land at any area of choice. Heaping people together on IDPs settlement is not stigmatizing but amount to discrimination and ethnic profiling. This beast of IDP must be strangled and be removed from the face of the country.
George N. Kimani (The writer is an Advocate of the High Court of Kenya)

Email-gkihingo @yahoo.com

My primary school civics teacher taught me that Kenya is a sovereign nation. He emphasized to me that sovereign nations have independent institutions such as the executive, legislature and judiciary to man their affairs of governance. He also taught me that acts of poking fingers in other nation’s affairs despite protest are called intrusion. The governments clamor to set up a local court to adjudicate on the PEV issue should be respected and given a chance.

Kenyans must decisively deal with the PEV and the resultant issues which threaten to divide the nation. Political leaders must spare the country ugly dramas as they engage in unnecessary noises politicizing the PEV issues to suit their selfish power struggle missions at the expense of the country’s dignity and sovereignity.No one should hoodwink Kenyans. The lives of forty million citizens is not dependent on the anti or pro Hague process, however the political lives of majority of the current breed of politicians hangs on the manner in which the PEV issues are handled. The country is far superior to fears, aspirations and political ambitions of individuals and it will survive them.

This week marks one of the most disgraceful events in Kenya political history. After systematic reckless handling of the legislations intended to resolve the ugly aftermaths of 2007 elections, the country nudity will be exposed at the Hague, a foreign jurisdiction. This will be a clear
manifestation of the country leadership ineptness and outright ridicule of Kenya independence struggle. Tribalism, raw political greed and wild political power struggle amongst a small cable of political elites and opportunists risk delivering this country to dogs of neocolonialism.

Whether any of the Ocampo six is guilty or not is immaterial. Kenyans must be tried in their country for any crime committed within the country so long as the country professes to be independent. Jaramogi odinga, Masinde Muliro, Harry Thuku, Dedan Kimathi, and many of the
founding fathers of this nation must be turning in their graves as they mourn the betrayal of the nation by power hungry political bootlickers.

On 28/2/2008, I wrote an Article in the Daily Nation, “Constitution and Legal Reforms Are the Solution” and stated that the PEV and other past political injustices should be resolve under a reformed constitutional dispensation. I underscored the importance of respecting Kenya’s political sovereignty and the self determination by the citizens to realizing a new constitution to effective fully address historical injustices and dark history of the nation. I stated that Kenyans have capacity to shape their own destiny, coexist harmoniously and pursue national growth and development for national good.

Whereas the country must earn its dignity by honoring its obligations under the international treaties and conventions, it is contemptuous for friendly nations or individuals to campaign and administer alien prescriptions to cure maladies affecting the country. It is perilous and reckless for our legislators and leaders to mortgage this country sovereignty by blindly absconding their duties of passing patriotic legislations that would effectively address social economic and political
challenges facing Kenyans.

The enactment of a reformed constitution presented the country an unprecedented golden opportunity to soberly address the genesis and the effects of PEV.However negative attributes of anti reforms, tribalism, political expedience, foreigners worship, and misplaced political priorities have significantly contributed to making Kenya a symbol of international ridicule and shame among communities of nations.
The circumstances facing the Ocampos six are of their own making and whatever the outcome of the process they like other Kenyans must be prepared to embrace ethos of patriotism in future.
Similarly the current uncertainties facing the nation have been greatly contributed by Kenyans whose indolence and absolute lack of vigilance has glorified political elites into demi gods.

Kenyans must abandon the despicable culture of hero worshipping politicians but rather wake up and participate in national affairs reasserting their rights under the new constitution by seeking remedies and interpretation of national policies within the rightful institutions. This will definitely hold the leaders and political leadership into account castrating their selfish political agrandisement.

The Hague trials are of absolute no value to this nation much more so when the obvious key culprits are left sitting pretty, enjoying dividends of the PEV in warmth of plum public offices. These trials are of no benefit for realization of justice for the victims of the PEV or perpetrators of the heinous acts of the violence. These trials do not add value to growth of Kenyans institution of justice or jurisprudence.

It is not debatable whether perpetrators of PEV should be subjected to court process, the answer is yes. It is obvious that genuine victims of PEV should be compensated whereas bogus IDPs manufactured by misguided provincial admistrators as cash cows must be isolated and
punished. The stolen funds must be returned.

However the PEV challenges should serve as a renaissance for Kenyans to evaluate their levels of patriotism, build trust in their institution of governance and endeavor to put in place credible leaders to manage the public affairs. Kenyans must decree that any leader who negates the aspirations of the founding fathers of this nation be not worth the name and be ejected from office. Similarly leaders who push clandestine agendas betraying their country, ridiculing local institutions to achieve selfish political gains must also be ostracized and their demons cast in deep see of political oblivion. Every Kenya has the business and onus of making this country and its institution great for posterity. It is high time an Act of parliament on Patriotism and Nationalism is enacted.

George N Kimani, Nairobi (The writer is an Advocate of the High Court. Email gkihingo@yahoo.com)

PRESIDENT MWAI KIBAKI: The former Defence Minister and longtime Kibaki confidante, Njenga Karume, let the cat out of the bag on the sole occasion when he and the then Leader of Official Oppostion, Mwai Kibaki, had a public falling out. This was when Karume, who had long been the patron of Kibaki's party of that time, the Democratic Party, shifted his allegiance to Uhuru Kenyatta, who had been anointed by President Daniel arap Moi to be his successor, in mid-2002. Karume announced that Kibaki was a singularly ungrateful man who never took any consideration of what others had done to help advance his political career. If there was any truth in that statement, then it is reasonable to assume that the predominant thought in the President's mind at present, is relief that he was not on that list, especially as the retaliatory attacks were reportedly planned in State House. Now he is free to focus his attention on securing his political legacy through his far-sighted public infrastructure programme which will most likely be remembered as his greatest contribution to propelling Kenya towards prosperity.


PM RAILA ODINGA: He is perhaps the biggest winner from the naming of the six key suspects, now said to be "bound for The Hague". In one move, the ICC process has crippled the presidential ambitions of two key figures from the team which is set to oppose him in the 2012 presidential race. It is reasonable to assume that any political leaders who now have The Hague to worry about, are not likely to be very effective in helping organise the anti-Raila forces. Staying out of jail tends to be a fulltime occupation when faced with accusations of "crimes against humanity" before an international tribunal. And while the accused are thus engaged, their regional political rivals will be busy making inroads into their core support groups. In this context, Gideon Moi's recent 'takeover' of Kanu is particularly serendipitous - the long-anticipated return of the Moi dynasty to the centre of Rift Valley politics is now more plausible, with Ruto having so much on his plate. And in Central province, presidential hopefuls Martha Karua and Peter Kenneth now have a clear road along which to pursue their ambitions, with reputed frontrunner from that region, Uhuru Kenyatta, being otherwise engaged.

VP KALONZO MUSYOKA: Up to now, it has been argued that the proposed 'KKK' political alliance which brought together Kalonzo, Uhuru and Ruto, faced an intractable problem when it came to deciding which one of them would in due course run against Raila in the 2012 presidential race. But now, with the release of Ocampo's list of suspects, the decision seems to have been made in favour of Kalonzo. On the one hand, Uhuru Kenyatta and William Ruto will now - more than ever - be determined to keep Raila out of State House. And on the other hand, given the pace at which the ICC works, it is not likely that they will be free to engage in an intense and protracted grassroots political campaign anytime soon. The best they can do is to throw their weight behind their political ally, Kalonzo Musyoka, a man for whom the Ocampo list must come as an undisguised blessing, even though that is the last thing he would ever admit to.

Kenyans must give it up for Moreno Ocampo for poking his finger far enough where no-one else could. Though he did not dip his finger enough where the cancer is, today we know who bears greatest criminal responsibility for 2007/08 post election violence in the eyes of ICC prosecution office. They are:

1. William Ruto

2. Uhuru Kenyatta

3. Henry Kosgey

4. Hussein Ali

5. Francis Muthaura

6. Joshua Arap Sang

The good

The culture of impunity, politically instigated violence, political chest thumping and other vices that are idolized along parliament road have received a below the belt blow. In the future political aspirants will think twice, thrice before inciting their followers to violence and innocent bloodshed. Civil servants will step down rather than take orders that border on crimes against humanity from their masters.

The bad

Thousands of criminals participated in the planning and executing of post election violence. The ICC has only gone for six and is not keen to prosecute more. The judiciary in Kenya has no will, power or political goodwill to prosecute these criminals. As it is these criminals will go scot free forever. Thousands of IDPs are still stuck in camps and there is no hurry to resettle. Thousands of Kenyans who were raped, maimed, killed and lost property will never get retribution and compensation.

and the ugly

The post election violence was about two Kenyan citizens who with stinking impunity are unfortunately above any judicial process in Kenya and sadly in the world, now that the ICC cannot dare touch these two.

The IDP camps in various parts of the country are ugly scenes and are constant reminder of political short sightedness of our political system and leadership. It is unfortunate that the government has not evolved a strategic and systematic legal frame work to address the plight of victims of political violence three years after.

For how long will Kenyan live as refugee in their own country? It is inhuman to have citizens stay in ram shackles and in hopelessness having been uprooted from their homes courtesy of greedy and tribalistic political competitors.

It is pertinent that the welfare of victims of post election violence be addressed. These citizens suffered social, economic, health and psychological loses. Some lost life, self advancement opportunities including education and wanton destruction of private property. Others were maimed. A legislation providing for resolving these issues should be enacted.

It is not enough for the government to be obsessed with a disgraced land allocation programme which has become a cash cow for corrupt government officials and disgruntled civil society opportunists.

It is naïve to think that families who were uprooted from their homelands, their relative killed by political hooligans, sibling deprived bread winners merely need a meager piece of land to remedy their elaborate misery.

As a matter of right they deserve more realistic justice and equitable compensation. Majority of the IDP know their aggressors. Indeed some of these criminals are still in illegal occupation and possession of their victims properties. It is this realization that makes it crucial that a legislation which addresses the plight of the IDPS and victims of political violence be enacted. A Bill akin to Political Violence Victims Protection and Compensation need to be put in place. Under such Bill a special court to expediently adjudicate victims concerns should be provided for.

Kenyans must redeem themselves from imagining that solutions to their historic and political injustices purely rest with foreign entities such as the ICC.As much as it is crucial that the perpetrators of 2007 post election violence be prosecuted and punished it is laughable for Kenyans to sit and meekly await substantive justice for victims from ICC

Today the ICC prosecutor has revealed the identity of some individuals he associate with perpetration of acts of violence, obviously he will not have solution to the IDP menace. The ICC has no mechanism for compensation and or substantive remedy for victims. One would have wished that the ICC look beyond the alleged six individuals and be a progressive instrument of justice committed to building capacity of domestic prosecutions while supporting efforts to end impunity taking into account stability of nations.

Listening to the ICC prosecutor talk in Nairobi on the time frame the cases will take and the fact that he is interested on the acts as opposed to the circumstance that caused the violence, one is left gasping for breath awaiting the melodrama Kenyans will be subjected to in the years to come. Indeed it will be instructive to watch and see the individuals who ICC prosecutor will be seek to indict.

Kenyans know the genesis of the 2007 post election violence and unless the real culprits are charged the theatrics thereof will be tantamount to nurturing impunity and big men syndrome.

Since establishment of the ICC eight years ago the ICC prosecutor has demonstrated real weakness of not pursuing the perpetrators in position of powers, a case in point being DRC, Uganda, and Central Africa. Rather he has concentrated on pursuing rebels and political subordinates. Equally the ICC Seem not to have expanded its scope beyond Africa to Europe save recently informal investigations in Cambodia and Afhaganistan.

The implementation of the new constitution and establishing of effective institutions should override the blind belief that ICC is the Kenyans Messiah. The ordinary Kenyan citizens, the middle class, youth and reformist interest groups must come out and zealously articulate for implementation of the constitution.

Instant disbanding of the Kiplagat led Truth and Reconciliation Commission and replacement with a more credible and acceptable body armed with resolve and patriotism to move this country forward for posterity is pertinent.

The coalition government as current constituted should direct its energy to the implementation of the new constitution and relegate the agenda of prosecution of perpetrators of post election violence.

This government is a product of the post election violence and negotiations thereafter and therefore cannot objectively handle or cooperate with ICC in such agenda. Possibly the next government will be better placed to wrestle with the issues surrounding the 2007 political violence and its aftermath. There should be no regrets if the government withholds cooperation with ICC.

This country cannot be built on vendetta, vindictiveness and ceding of its sovereignty to some colorless foreign operatives while pretending to honour some international pacts. Gallants sons and daughters of Kenyans lost lives and liberty in pursuit of self governance so that Kenya can autonomously run its affairs and confront her challenges for well good of the citizens.

This can only be possible by nurturing and build strong institutions including the judiciary as envisaged under the new constitution. Kenyans leaders must be dynamic and ably handle challenges taking into account the changing times and political circumstances to accommodate best interest of the country. Having realized a new constitutional order,the ICC idea is superfluous particularly when it risk politicization.

It is indeed questionable why some foreign envoys whose countries are not privy to the Rome Statute are dictating to Kenyans the ICC methodology of resolving the post election violence. Kenyans should not dance with the devil while chasing elusive speculative justice at expense of national stability. A realistic and speedy solution to remedy the plight of the victims of post election violence is an urgent priority worth rethinking.

George N. Kimani, Nairobi (The writer is an Advocate of the High Court of Kenya)
Email-gkihingo@yahoo.com

The big news about Africa on much of the global print media, over the past week or so, has been a report on how hundreds f of women were assaulted and raped by rebel militias in eastern Democratic Republic of Congo (Congo DRC) last June.

It is perhaps right and poetically fitting that these reports of DRC atrocities have been released at a time when prominent members of Kenya's political establishment are quaking in their boots at the prospect of the promised indictments and arrest warrants finally being issued by the ICC.

For if all that we have heard rumoured is true, then some of these seemingly polished and civic-minded men, have some personal experience of unleashing rabid militias on innocent men and women in unprotected villages or urban slums.

Thanks to these politicians, the days are long over when Kenyans could look with amazement at such atrocities as those which recently took place in the DRC, and ask, "What is wrong with those people?" We know now that we are in no position to stand in judgment over other African nations, in the matter of atrocities that arise when "tribal conflict" commences in earnest. We can no longer pretend that we are any different.

And that, I suppose, is why these ICC indictments - as and when they are finally handed down - should be viewed with rejoicing by the average Kenyan. They offer us the only opportunity we have to ensure that we never again have to experience anything like the post-election violence of 2007-08.

It's true that there will almost certainly be innocent people caught up in the ICC net. That can hardly be avoided when witnesses are reportedly being flown out with their entire families and further promised the opportunity to settle in the consoling suburbs of North America and Western Europe, after they have testified against the alleged masterminds of the post-election violence.

West Africans have been known to attempt foolhardy desert crossings to get to Europe via North Africa. Yet others are routinely drowned while trying to sail the Mediterranean Sea on some makeshift boat in the desperate search for economic opportunity in Europe.

So why would a Kenyan not make up elaborate atrocity stories directed against a person from a different tribe, if this would lead to permanent residence amidst those streets which are said to be payed with gold? This possibility of fictional atrocity stories is something which will bear watching when our fellows-citizens begin to give evidence against some prominent politicians who are even now having sleepless nights.

Still this is not your heavily compromised and deeply mistrusted Kenyan justice system we are talking about. It is the ICC, a world-class judicial operation. And I would venture to suggest that mere indictment by the ICC would be seen as proof of guilt by most who read about it. If the accused was to be subsequently released for lack of evidence, this would not take away the stain of perceived guilt.

In all mention of that person's name thereafter, the foreign press (in particular) would speak of "the Kenyan minister who was once indicted by the ICC for crimes against humanity..." That is hardly the kind of thing which any politician, however reckless, would want his grown-up children to read about in the papers; and every time he or his family travelled abroad, if an immigration official lingered over their passports, they would nervously wonder if perhaps that officer was trying to figure out where he read this name before, and why the mere reading of it made him so uneasy.

To have your name officially associated with crimes against humanity is definitely a punishment in itself. But there is always the chance that some of these Kenyan leaders will actually be found guilty.

That they were absurdly careless in those difficult days: that they got carried away with the heat and fury of the moment. And that they subsequently left behind the most obvious and unmistakable evidence of their involvement in the massacres and arson attacks of those desperate days.

And this takes us back to those hundreds of rape victims in the DRC. The reason why there will be no escape for the perpetrators of the post-election violence here is that this is not really just about Kenya. It is about sending a message to all African leaders.

And the message is that it is no longer possible to allow atrocities to be committed within your borders - or to sponsor such atrocities yourself for political reasons - and hope to get away with it.

The writer comments on topical issues.

My heart continues to bleed for the thousands of IDPs being tortured and exploited in camps and transition camps. Further my call for attention to hundreds of victims who are suffering from grave harm inflicted on them including some with bullets in their bodies following the post-election violence.

Two and half years on it is tragic that politicians, for whom these people suffered, shared spoils and abandoned them. The needs of these victims are being forgotten because their voices are consistently ignored.

To uphold the rule of law and have justice for these victims, I hope you will speak up for justice at every opportunity. Domestic and international law is supposed to guarantee that those who committed such heinous crimes face justice.

We must have a special tribunal working in complementarity with International Criminal Court to prosecute those who committed these crimes. It is also important to deny a visa to those suspected of serious crimes.

As individuals and as groups, we must break the silence and speak up about justice for these terrible crimes. I am confident that we can achieve justice. Unless government of Kenya is willing to bring prosecutions for these worst human rights abuses, it will have a hard time achieving political stability and sustainable development even under the new constitution. Impunity leads to conflict, corruption, and lives stunted by fear and intimidation.

Victims don't stop being victims and criminal acts are not simply absolved just because Kenya is promulgating a new constitution. The victims and the public deserve to know the truth about the post-election violence.

New constitutional order calls for a return to human rights and accountability, not to engage in willful amnesia.

The government must operationalise an effective and credible victim-and-witness assistance and protection mechanism, which is one of the basic preconditions for ensuring accountability for human rights violations.

If Kenya wants to show . that it is willing and able to conduct serious crimes trials, it must effectively protect victims and witnesses from intimidation and harassment. Torturers, financiers of violations and those who violate human rights should be brought to account. We should not forget the victims who have gone through trauma and disruption of everyday life and their future.

The right to a remedy and reparation is a basic human right. It is enshrined in numerous international human rights instruments.

Reparation is the last step in the achievement of full human rights protection. Firstly, violations of human rights should be prevented. Secondly, if a violation does take place, it must be investigated by the State authorities, promptly, thoroughly and impartially. Thirdly, victims should have access to justice. And finally, victims have the right to receive adequate reparation.

The fact that reparation is the last step in the achievement of human rights protection might be one reason why so little focus has been put on this issue so far. It should be addressed more consistently and thoroughly by the government, not as a privilege to the victims but as an obligation by international law.

Financial compensation is the most widespread form of reparation. Some damage can be easily estimated in monetary terms. But there are the physical, mental or moral damages. Financial compensation is not the only remedy which victims seek. Other forms of reparation include: restitution of the situation before the violation took place; rehabilitation; satisfaction; revelation of the truth and accountability; and guarantees of non-repetition.

By taking a victim-oriented approach, we affirm our human solidarity with victims of gross violations of human rights. We seek to compensate them for risks which the state could not prevent from turning into damage and harm.

However, reparation can never fully undo the damage that has been done. Gross violations of human rights are irreparable. But this must not impede us from fighting to achieve justice.

The starting point for redress is addressing questions of criminal responsibility. It is necessary to make a real break with abusive policies and practices of the past. If Kenya wants to have a successful transition from an era of impunity to respect for the rule of law, it needs to embrace truth, justice and reparation for human rights violations.

Wainaina is the executive director, International Centre for Policy and Conflict.