The International Community must immediately isolate Kenya’s Mwai Kibaki, Raila Odinga and their Grand Coalition Government. We Reject the Cabinet Statement of July 30, 2009 as yet another attempt to entrench Impunity in Kenya.
On 30 July 2009 The President Mwai Kibaki and Prime Minister Raila Odinga held a press briefing after a 4 hour Cabinet Meeting and released the following Statement:
Cabinet today discussed exhaustively the various options available to deal with crimes committed during post-election violence. The options are:
i) The Special Tribunal,
ii) Referral to the International Criminal Court (ICC) under Article 14 of the Rome Statute,
iii) Withdrawal from the Rome Statute under Article 127 and repeal of the International Crimes Act, 2008
iv) The High Court under Section 8 of the International Crimes Act, 2008
v) Establish a Special High Court Division
Cabinet discussed these options extensively in terms of merits and demerits. The Cabinet took all the circumstances into account, including providing the enabling environment for the ongoing reform agenda.
Cabinet resolved it will not stand for impunity in the pursuit of justice, and the country should pursue national healing and reconciliation. Therefore, the Cabinet:
i) Reaffirmed its commitment to rule of law, and in particular in its commitment to the International Criminal Court and will co-operate and fulfill its obligations to the Court;
ii) Will undertake accelerated and far-reaching reforms in the Judiciary, Police, and investigative arms of Government to enable them investigate, prosecute and try perpetrators of post-election violence locally;
iii) Deal with other forms of impunity including extra-judicial killings, corruption, and unlawful acquisition of public land and other assets;
iv) Propose amendments to the Truth Justice and Reconciliation Act to make the TJRC more representative and effective.
Cabinet is confident that with proper healing and reconciliation, Kenya will not face the events of last year’s post-election violence.
The Cabinet is taking Kenyans for a ride with this statement. The Grand Coalition Government’s proposal fails to meet the minimum standard set by the Waki Commission of Enquiry on the Post Election Violence with respect to establishing an independent, impartial and effective judicial method to conduct trials of the organizers, perpetrators and financiers of the post election violence which caused the death of 1,133 Kenyans in 60 days and the displacement of over half-a-million others. In fact it reveals the desire by the Grand Coalition Government to retract its adoption of the Waki Report surreptitiously; to grant the guilty impunity and to deny victims their inalienable rights to truth and justice.
The Waki Commission of Inquiry into the Post Election Violence was a serious Commission and its report is widely praised for showing Kenya a way out of trouble. In a matter of months, the Waki Commission of Enquiry on the Post Election took 4,773 pages of recorded sworn testimony from 156 witnesses and 144 other witnesses who submitted depositions and recorded statements. It registered 9 volumes of exhibits running into more than 3,500 pages including official reports of previous investigations and new investigative material. On the basis of findings on this evidence the Waki Commission made strong recommendations about how to deal with impunity and state institutional failure by the Attorney General, the courts and the Police.
Yesterday’s Cabinet statement claimed a desire to “undertake accelerated and far-reaching reforms in the Judiciary, Police, and investigative arms of Government to enable them investigate, prosecute and try perpetrators of post-election violence locally.” How long will this tired line be spun? Reforms which should have been done to the institutions discussed in the Cabinet statement ought to have commenced in November 2008 and by now the Cabinet should have given several interim updates and reports on progress towards implementing reforms that were detailed by the Waki Report.
An entire chapter of the Waki report made recommendations on the State Security Agencies recommendations which since October 2008 have not been implemented by the Grand Coalition Government. Another chapter of the Waki Report discussed impunity and the failure by the Judiciary and the Attorney General to tackle past gross violations of human rights including political violence about which nothing had been done by either institution going back as far as the 1990s.
To demonstrate what impunity in Kenya is the Waki Report quotes the First Principle of the Amended Set of Principals for the Protection and Promotion of Human Rights Through Action to Combat Impunity which states that “impunity is the impossibility, de jure or de facto, of bringing the perpetrators of violations to account – whether in criminal, civil, administrative or disciplinary proceedings – since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to make reparations to their victims.
Impunity arises from failure by States to meet their obligations to investigate violations; to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished; to provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered; to ensure the inalienable right to know the truth about violations; and to take other necessary steps to prevent a recurrence of violations.”
As of the date it was submitted to President Kibaki by Justice Waki, Kenya was a state in which impunity was guaranteed for certain connected individuals and Partnership for Change does not believe that anything has really changed since. As of October 2008, the Waki Commission reported that though the Kenya Police maintained that it had made arrests of suspected offenders in 13,000 incidents and had mounted 1,337 prosecution cases, the Registrar of the High Court was “unable to confirm the progress in the hearing and adjudication of those cases.” If Cabinet were serious about ending impunity it would have made public a status report on these and subsequent prosecutions – if any.
It was because of the institutional failure of the investigative, prosecutorial and adjudication arms of the Kenyan state that Justice Waki and his fellow commissioners Gavin McFayden and Pascale Kambale innovated a solution for the problem of high-level and political impunity in Kenya by recommending that there should immediately be established a Special Tribunal for Kenya – and if this was frustrated there should be a reference to the International Criminal Court of the persons who required further investigation and prosecution.
The Special Tribunal was meant to be a court of international standards sitting in Kenya to try persons bearing the greatest responsibility serious crimes committed after the 2007 election, and particularly crimes against humanity. The Special Tribunal was intended to apply both Kenyan law and the International Crimes Act. Further to the Special Tribunal for Kenya, the Waki Commission recommended that the Witness Protection Act be implemented so as to protect witnesses before the Special Tribunal. To date no more than 50 million shillings has been allocated for Witness Protection by the Treasury and the Attorney General. Justice Waki’s Report also recommended the passage into law of the Freedom of Information Bill to ”enable state and non-state actors to have full access to information which may lead to arrest, detention and prosecution of persons responsible for gross violations.” The Commission recommended that all persons holding public office and public servants charged with criminal offences related to post election violence should stand suspended pending adjudication; and that persons convicted for post election violence should stand lustrated and barred from ever holding public office or contesting any electoral position. How many of these recommendations has the Cabinet deliberated or acted on?
Now that the Grand Coalition Government has failed to implement the Waki recommendation we believe that the international Community must isolate Kenya’s Mwai Kibaki, Raila Odinga and their Grand Coalition Government, because left on their own they appear to have no interest other than shielding alleged perpetrators named by the Kenya National Commission on Human Rights and “stopping accountability against persons bearing greatest responsibility for crimes, particularly crimes against humanity, relating to the 2007 General Elections in Kenya.”
The Kenya National Commission on Human Rights investigation of the post election period found that the infrastructure of violence was financed and sustained mainly by local politicians and business people to support costs such as transport of attackers, weapons and other logistics. The violence was largely instigated by politicians throughout the campaign period and during the violence itself via the use of incitement to hatred. The Kenya National Commission on Human Rights has published a list of 219 alleged perpetrators of the post election violence, some of whom hold public offices and remain with responsibility within echelons of Government.
“We have a responsibility to support those who act responsibly and to isolate those who don’t, and that is exactly what America will do.” US President Barrack Obama, Accra Ghana 11th July 2009
How can the International Community find it prudent to continue to do business with a government that is not implementing the National Accord? Has the International Community abandoned the Kenyan people?
Kenyans want to support all efforts local and international that deal with ending impunity. But Kenyans do not want their efforts frustrated. It is important that the international community does its part in reigning in powerful suspects who are holding the nation at ransom. The methods of pressure that worked during the height of the post election violence period require fresh consideration for application today. Personal, financial and immigration sanctions immediately spring to mind.
Further Reasons why the Cabinet Statement should be rejected
On 28th February 2008, Mr. Mwai Kibaki of the PNU and Mr. Raila Odinga of the ODM signed an agreement known as the National Accord. This agreement was signed because after the botched election of December 2007 and post election violence that followed, Kenya was on the brink of a precipice.
No one in Kenya knows who won the Election of December 2007 and therefore Mr. Kibaki and Mr. Odinga cannot claim a legitimate mandate based on votes to rule Kenya. Kenyans gave their consent, for establishment, by constitutional amendment, of a Grand Coalition Government with the sole mandate of implementation of the National Accord.
The National Accord was intended to facilitate an effective government to develop the country and conduct essential statutory and administrative reform of key institutions, even while reconciling Kenyans, tackling mass poverty and unemployment, addressing historical grievances, ending impunity and punishing crimes committed during the two month period of post-election-violence that caused the murder of 1,133 Kenyans and the displacement of over half a million citizens
The National Accord was meant to heal and reform Kenya to prevent the eruption of violence from happening again in Kenya.
Since that date 17 months ago, the Grand Coalition Government has dragged its feet on the implementation of the National Accord and has failed to provide money in the National budget for its implementation. The cabinet has failed to establish the tribunal to try the perpetrators. The Executive and Parliament have failed to provide money to ensure that the Special Tribunal is established and the National Accord is implemented. The Partnership for Change considers the Grand Coalition Government to be ruling ultra vires the constitution of which the National Accord is an integral part.
The Grand Coalition Government is an unelected Government:
Kenya is a multi party democracy. Our Constitution requires that a government must be elected. We however amended our Constitution temporarily to allow an UNELECTED government to govern in order to deliver the implantation of the National Accord. The Implementation of the National accord had timelines which the unelected Grand Coalition Government has failed to deliver as is its duty to Kenyans to do so as expected in the National Accord. Kenyans have the right to demand for the full implementation of the National Accord. Failure to implement the National Accord constitutes grounds for a fresh election. The Grand Coalition Government has failed to deliver the National Accord reforms and has not even bothered to provide resources for its implementation. It is now, necessary and urgent for the survival of our country that the Grand Coalition Government immediately resigns in the Public interest to allow Kenyans to elect leaders through a Democratic dispensation through the ballot.
The Cabinet took all the circumstances into account, including providing the enabling environment for the ongoing reform agenda.
The Grand Coalition Government cannot and is not capable of providing the enabling environment for the reform Agenda. Reforms require capable reformists; Mwai Kibaki and Raila Odinga have no reform credentials and have demonstrated none during the 17 months that the National Accord has been in place.
The Partnership for Change is of the considered view that over the last 17 months the citizens of Kenya have exhausted the mechanisms available to us under the national Accord Agreement to cause the Grand Coalition Government to implement the National Accord. This government acting together with Parliament has no vision, no morals and no desire or intent to uphold the constitution of the Republic of Kenya. In fact they are collectively acting ultra vires the constitution. There is no moral reason why Kenyans are still obliged to support this ineffective, rights violating Grand Coalition Government
Cabinet resolved it will not stand for impunity in the pursuit of justice, and the country should pursue national healing and reconciliation.
The Cabinet stands for Impunity. It has demonstrated that its stands for Impunity on countless occasions looking the other way when, the political elite commit economic crimes and crimes against humanity. It has hammered the nail in the coffin by rejecting the special tribunal. The Cabinet, Members of Parliament and the two principals are aware that under the Rome Statute Article 27: Irrelevance of official capacity, “the Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence”
The Cabinet, Members of Parliament and the two principals all know that there is no Impunity in International Law.
Therefore, the Cabinet reaffirmed its commitment to rule of law, and in particular in its commitment to the International Criminal Court and will co-operate and fulfill its obligations to the Court;
The Grand Coalition Government is sweeping gross crimes committed against Kenyans under the carpet and is misrepresenting its ability to try criminals. The post election violence will definitely forms the basis of an investigation by the International Criminal Court for crimes against humanity committed in Kenya. These crimes were financed and organized by senior politicians and businessmen. We are grateful to the Government’s own body, the Kenya National Commission on Human Rights (KNCHR) for releasing the names of those who need further investigation. These names were provided to the KNHCR by Kenyan citizens – eye witnesses – conspirators – and victims. The release of these names for us as Kenyan Citizens is crucial because now we know those, who are probably behind the chaos in our country. We know that they are dangerous and will remain so until they are cleared in a transparent judicial process. Kenyans will not hero worship warlords nor will they get away with Impunity.
Despite the clamour for justice, the tribunal to try these perpetrators will now not been set up. Cabinet is pretending that it is committed to the International Criminal Court and will co-operate and fulfill its obligations to the Court. Cabinet ignores the woeful understaffing and resourcing of the Kenyan judicial system. The National Budget provides for only 20 commissioners of Assize this financial year, yet the entire country has no more than 58 high court judges, and only 287 magistrates. The backlog of cases according to the latest data from the Ministry of Planning is over 800 thousand cases, and according to the Waki report itself there are only 64 State Counsel to prosecute cases countrywide. All other prosecutions are conducted by Police officers.
Further to this, there are over 45,000 Kenyan Citizens that are incarcerated daily in remand awaiting justice. A further 130,000 Kenyans are in prisons that have a 16,000 capacity. Kenya has not built any additional prisons since Independence. Hundreds of the thousands of Kenyans are still waiting for Justice. How can we expect Justice from this local pathetic situation?
The Kenyan judicial system cannot, without massive injection of resources and restructuring which could take years, try the post election violence cases that all Kenyans wish for. Worse a bogus jurisprudence has been created in Kenya since 1964 which claims that the President is above the law and most Kenyan lawyers and Judges hold this position as sacred. Impunity is built into the Kenyan criminal justice system for the President and those whom he wishes to protect or fears politically as such the Grand Coalition Government is resisting the use of Article 27 and 28 of the Rome Statute.
Therefore, the Cabinet will undertake accelerated and far-reaching reforms in the Judiciary, Police, and investigative arms of Government to enable them investigate, prosecute and try perpetrators of post-election violence locally;
Mr. Kibaki and Mr. Odinga under the Rome Statute, bear responsibility of commanders and other superiors. Mr. Kibaki appointed the Commissioner of Police, Major General Hussein Ali now implicated by Justice Waki, Professor Alston and by the KNCHR as one of those bearing the greatest responsibility for the post-election violence. Yet Mr. Kibaki retains the Commissioner of Police as he continues to violate the Human Rights of Kenyans. The truth is that if there were seriousness on the part of Kibaki and Odinga, Major General Ali would have been sacked and would be currently facing prosecution for his role in the Post election Violence as Kenya has not suspended the Constitution, which prohibits murder of its citizens by the State. How can these two Principals now, and without shame say that they will undertake accelerated and far-reaching reforms in the Judiciary, Police, and investigative arms of Government to enable them investigate, prosecute and try perpetrators of post-election violence locally, without applying International Law?
Therefore, the Cabinet will deal with other forms of impunity including extra-judicial killings, corruption, and unlawful acquisition of public land and other assets
The Grand Coalition Government established after the National Accord is the largest and most expensive cabinet in Kenya’s history. The economic situation required the Government of Kenya to immediately demonstrate austerity measures, including the reduction of the number of ministries to a reasonable number. At Independence there were 13 ministries today there are 43. Kenyans are poor and cannot afford to continue to maintain a bloated Cabinet of 93 Ministers and Assistant Ministers. Many of the 43 Ministries in the Grand Coalition Government have no developmental added value and are mere sinecure positions for The President and Prime Minister to fill. The Budget brought to Parliament is unworkable and heavy on wasteful recurrent expenditure for these ministers. Further, the majority of the cabinet is adversely mentioned in Government and Parliamentary reports as being corrupt. Some have even been barred from holding Public office
The two Principals are unable to reshuffle their Government to reduce the number of ministers, and to remove the corrupt ones from the cabinet. Most of those who acquired land illegally are public officials and politicians and documented by the Ndungu report. Those accused of financing and organizing post election Violence are politicians, government officials and businessmen. Those accused of Grand corruption are politicians, government officials and businessmen. Many sit in Cabinet. Those accused of Extra Judicial Killings are appoint by the President and supervised by the Prime Minister.
Therefore, the Cabinet will propose amendments to the Truth Justice and Reconciliation Act to make the TJRC more representative and effective.
Truth Commission gets only 100 million shillings this year. To fulfill its mandate the TJRC would require billions of shillings for investigative services, witness protection, public hearings and extensive legal support and documentation. It was never the intention of this Government for the Truth Justice and Reconciliation commission to be effective and all purported changes to the Act are a further attempt to hoodwink the Public. Further Kenyans have lost faith in the credibility of our institutions. But at all costs we must keep the political elite out!
Cabinet is confident that with proper healing and reconciliation, Kenya will not face the events of last year’s post-election violence.
Cabinet is right on this one. That with proper healing and reconciliation, Kenya will not face the events of last year’s post-election violence, but, healing and reconciliation will be done by Kenyans themselves. We will heal because it is in our enlightened self interest to do so. The Post Election Violence was caused by Politicians and Businessmen with political interests. Cabinet does not care to bring Justice for the victims. The statement by cabinet must be rejectedby all Kenyans.
Signed 31st July 2009 at Nairobi by the Partnership for Change