Government faces internal rebellion over truth and justice commission

The Kenya government’s perceived plan to give the Truth, Justice and Reconciliation (TJRC) powers to prosecute post-election violence suspects appears headed into trouble after the Justice minister publicly criticised the position recently taken by his Cabinet colleagues.

The TJRC chairman, Mr Bethuel Kiplagat, and his deputy, Ms Betty Murungi also told the Sunday Nation that they had rejected proposals to expand their mandate, leaving the government proposal in limbo.

“The statement by Cabinet was informed by a decision not to decide,” Mr Mutula Kilonzo told the Sunday Nation. “The Cabinet is confusing the country for no reason.”

Mr Kilonzo’s views signal divisions in the Cabinet over how to deal with the suspects, although no other minister has come out to publicly contradict the position announced by President Kibaki following the July 30 Cabinet meeting.

It has also emerged that the drafting of the Cabinet statement read by President Kibaki was preceded by intrigues over what position to take: approve a Bill for the formation of a local tribunal or refer the matter to The Hague.

Sources familiar with the deliberations say President Kibaki, Prime Minister Raila Odinga and Vice President Kalonzo Musyoka were taken through the statement by Cabinet minister Mutula Kilonzo, James Orengo and Anyang’ Nyongo – the men who drafted the release alongside Attorney General Amos Wako.

Window ICC

The Prime Minister – sources have told the Sunday Nation – is said to have understood it to mean that it left a window for ICC to come in.

The drafters emphasised Kenya’s commitment to the ICC process by putting it as the first resolution which meant that the matter would not return to a Cabinet which had been unable to arrive at a position for three sessions..

The Cabinet was vague in its resolution to expand the mandate of the Truth, Justice and Reconciliation Commission, but the decision is widely understood to mean that the body will have powers to prosecute.

The Law Society of Kenya chairman, Mr Okong’o Omogeni, warned that it would be legally and practically untenable to expand the mandate of the TJRC as proposed by the Cabinet. The government appeared headed into more trouble on Friday after the European Union said that they would not fund a commission with an expanded mandate.

The flip side of the decision by the Cabinet is that it gives the ICC prosecutor Moreno Ocampo the green light to begin the process that could see political heavyweights and prominent businessmen hauled to The Hague for trial. Mr Moreno Ocampo already has evidence collected by the Waki Commission, the Kenya National Commission on Human Rights and other institutions.

In an interview with the Sunday Nation, Mr Kilonzo said he had nothing to report to the ICC save for the Cabinet statement and a forwarding letter.

“I cannot waste taxpayers money going to Geneva,” he said. “I’ll just write a letter and forward the Cabinet statement.”

Sounding exasperated during the telephone interview, Mr Kilonzo said that he had not looked at the proposals to expand TJRC’s mandate since he did not know how this would work.

“Some people seem to have forgotten that we passed a National Reconciliation and Cohesion Act creating a commission. We also have the International Crimes Act,” the minister said. “Unless my Cabinet colleagues convince me, there is no way of doing it. I doubt that they will convince me. I’m avoiding political caucuses and laying down the law.”

Mr Kilonzo, however, said that the standard to determine whether someone had committed international crimes is high, an indication that the ICC may only net a few of the top perpetrators.

On Saturday, Agriculture minister William Ruto urged his colleagues in Parliament to end the bickering over how to deal with the violence suspects and instead put measures in place to secure the country from instability.

The minister said that those who were opposed to the Cabinet decision were hypocrites who did not want to speak the truth.

The Cabinet decision, said Mr Ruto, was in the best interest of the country.

“We have heard enough about stealing of votes and we have also heard enough of post-election violence which has now become like a song. We must now secure our country from instability that we witnessed in 2007 and 2008,” said Mr Ruto. “Let’s not wait, blame each other or bicker. Each of us as leaders should play our part to move Kenya forward.”

Fisheries minister Paul Otuoma also supported the reconciliation route, citing the number of times the Cabinet sat to deliberate on the matter as enough proof that TJRC was the best way for Kenya.

“I am for TJRC as one of the Cabinet members and on recognition that we cannot keep bickering forever,” said Mr Otuoma.

Mr Otuoma and Mr Ruto, speaking at a fund-raising meeting at Emusire School in Emuhaya Constituency, said that there were more important things the government needed to accomplish such as judicial and police reforms, delivering a new constitution and creating employment opportunities for the youth.

“What we need is a new constitution that will disperse justice to all Kenyans,” Mr Otuoma said.

During the function, Budalang’i MP Ababu Namwamba also declared support for the Cabinet over its position on TJRC, saying that some people were using the ICC and local tribunal debate to fix their perceived political opponents.

“The post-election violence was a moment of temporary insanity that should never be repeated and as leaders, we cannot go on with this debate but address it through TJRC,” said Mr Ababu.

Energy assistant minister Charles Keter also voiced support for the Cabinet.

Others at the function were Dr Wilber Otichilo, the area MP, and Nambale’s Mr Chris Okemo.

Last February, then Justice Minister Martha Karua brought a Bill to Parliament seeking to establish a tribunal. It attracted the support of 101 MPs, well short of the 145 required for it to pass.

Political intrigues have delayed the process and ICC prosecutor in a meeting with Mr Kilonzo, Attorney General Amos Wako and Lands Minister James Orengo agreed last month that the government would show the concrete steps it was taking to deal with the matter by the end of September.

The deadline, after which Mr Ocampo would move in, is about seven weeks away.

The situation in Kenya has been under preliminary examination by the ICC prosecutor since 2008.

The government has committed itself to start sharing information on the status of investigations and prosecutions arising out of the post-election violence as well as on measures taken to protect witnesses, with a view to assisting the prosecutor’s work.

Should efforts to conduct national proceedings fail, the government agreed last week to refer the situation to the ICC in accordance with Article 14 of the Rome Statute within one year.

“The transmission of documents by Mr Kofi Annan forms part of these collaborative efforts to ensure that justice is not delayed and that future crimes can be prevented,” Mr Moreno-Ocampo stated.

Speaking to journalists on Monday Mr Kilonzo said he expected the ICC to start issuing arrest warrants against those in the Waki envelope by December.

LSK and the Kenya National Commission for Human Rights say that it will be legally and technically impossible to expand TJRC’s mandate to prosecute post-election violence suspects.

In an interview with the Sunday Nation, Mr Omogeni also said that an expanded TJRC cannot be an alternative to what was offered in the Waki report and which the President and the Prime Minister agreed to implement.

The Kenya National Commission on Human Rights vice-chairman, Mr Hassan Omar, also criticised the Cabinet decision and said that perpetrators of the violence were unlikely to escape justice.

The government has been under international pressure to set up a local tribunal to try post-election violence suspects. The latest came from U.S. Secretary of State Hillary Clinton who visited the country last week.

In a move that will also step up pressure to the government to reverse the rejection of the draft Bills on the special tribunal, UK High Commissioner to Kenya Robert Macaire and US ambassador Michael Ranneberger declared that their countries would take “necessary” measures against leaders who did not support punishing perpetrators of the violence.

Additional reporting by WALTER MENYA