Monday, 13 September 2010

Kenyans Have a New Constitution, but Justice Remains Elusive

Written by  Hussein Moulid Bosh

On August 27, Kenyans witnessed their leaders swear to obey, preserve, protect, and defend the new constitution and all other laws of Kenya. Cheered on by hundreds of thousands of jubilant Kenyans waving national flags, it has become reality that Kenya has opened a new chapter in its political history by replacing the 50-year-old Lancaster constitution with a new and truly people-driven one. But internal displaced people are still waiting for justice to take place under the new constitution.

Nearly 70 percent of Kenyans who voted in the August 4 referendum authorized the new supreme law, hoping for a fresh start from Kenya's checkered history.

The new constitution is seen as important to avoid a repeat of the post-election tribal bloodshed in early 2008 that killed 1,300 people and pushed the country of about 40 million people to the brink of anarchy.

Kenyans started demanding a new constitution about two decades ago, saying the basic law penned at the time of independence from Britain promoted oppression and exclusion. The new constitution sets up an American-style presidential system with checks and balances.

Certain promises of the new constitution, such as the curbing of presidential powers, present important steps towards creating a harmonized society free of political violence.

For example, article 145 in The Constitution of Kenya states that the legislature can impeach the President for violating the law. Also chapter 10 creates a stronger and more independent judiciary to make effective that arm of government, and by requiring the formation of a new land policy (land commission), the President’s authority to grant titles for political favors will end.

Even with the constitution passed, there remains a lot to do to make it work.

The New American interviewed one of internal displaced people (IDP’s) at the Mawingu camp, at the Burnt Forest in the Rift Valley.

“I am not celebrating the rebirth of Kenya because how can I celebrate while am living here? My house was burned in [the] 2007 general election; I lost two sons and my livestock. Two years passed and still I haven’t seen any sign of justice,” said 78-year-old Ann Wanjiru. “I don’t have food, shelter, and livestock. We all see high-ranking government officials visit us and promise to support us, yet there is no compensation,” she added.

Weeks of violence occurred after President Mwai Kibaki was declared winner of Kenya’s December 2007 elections. Raila Odinga's then-opposition party claimed the vote was rigged, leading to two months of upheavals. Many protesters who clashed with security forces were killed, but the violence also flared along tribal lines.

The Waki commission, charged with the task of investigating post-election violence in the aftermath of the Kenyan elections, recommended wide-ranging reforms of the police as well as the creation of a special tribunal for Kenya, independent of the judiciary, anchored in a constitutional amendment, and staffed by both Kenyan and international judges and prosecutors.
In the event no special tribunal was established, as a method to coerce a local investigation, the Waki commission recommended that former UN Secretary-General Kofi Annan — the chair of the negotiations that led to the current coalition government — hand over a sealed envelope containing the names of suspects to the International Criminal Court in The Hague. Annan handed over the envelope and other materials from the Waki commission to the ICC Chief Prosecutor Luis Moreno Ocampo in July 2009.

The Kenyan Government was then given one year, beginning July 2009, to set up a tribunal to deal with issue. Under the ICC's complementarity principle, the investigation may proceed only if Kenya does not conduct its own investigation into the matter, which it has thus far failed to do. So the ICC picked up the matter in the beginning of August 2010.

Ocampo will officially take over the ICC’s investigation. Many eyewitnesses to the violence have come forward, though some of them have received death threats, and the United States government has given guarantees of protection to any Kenyan witness who agrees to testify before the International Criminal Court.

Kenyan media recently reported that the ICC has sneaked many witnesses out of the country in preparation for the trial of the violence suspects. Many more witnesses are reportedly kept in safe house in parts of Kenya.

According to Moreno-Ocampo, 20 Kenyan officials, whose names are confidential, organized and financed the post-election attacks against civilians and have yet to face prosecution for their alleged crimes in Kenya. Ocampo stressed that the officials have not been formally charged, but remain under investigation. “The allegations concerning the named individuals will have to be measured against the evidence gathered independently by my office,” he told the court’s pre-trial chamber.

There have been a number of parliamentary- and government-appointed inquiries into election-related violence before 2007, but no action has been taken against the individuals named by those investigations.

Among 19 politicians on a list of 219 alleged perpetrators published by the state-funded Kenya National Commission on Human Rights (KNCHR) are three cabinet ministers. Among these are the Higher Education Minister William Ruto of the Orange Democratic Movement (ODM) and Finance Minister Uhuru Kenyatta of the Party of National Unity (PNU). Both are accused of funding and planning ethnic violence for political ends.

Human Rights Watch also recommended that the ICC and its prosecutor apply to its new Kenyan inquiry the lessons learned from the ICC's existing investigations. These include investigating all sides to the violence, and, where there is evidence, bringing charges that reflect the full range of the most serious crimes committed during the post-election violence.

Kenya shares a number of similarities with Zimbabwe, namely that both were British colonies in the past, both have had Lancaster House Constitutions, and more importantly both currently have power-sharing governments that emanated from the contested election results. They also both experienced post-election violence. Similar to Zimbabwe as part of the power-sharing settlement, they had to make a new constitution before elections, which are scheduled in 2012 after all the laws had been made.

The ICC’s registrar, Silvana Arbia, said in Nairobi on September 2 that the ICC had identified 396 cases of violence to investigate. She said 76 applications were by communities, while individuals filed 320 requests. "We have received all those appeals of which we are laying ground for thorough investigation. In all cases, all rules of natural justice will apply to the letter," she said. "I am here to ensure all is well as we carry on with our investigation. I am around to ensure security of all our witnesses is guaranteed as well as of their families and friends."

Despite the assurances of Arbia, protection of the witnesses cannot be guaranteed short of placing them in an armed encampment or giving them refugee status in other countries — because the violence was so systemic, and every individual implicated in the violence will likely have cohorts he can call on to threaten and coerce potential witnesses.

Even the ICC’s parent organization, the UN, has admitted that recently it did not protect hundreds of Congolese from gang rape when the UN had armed camps in the area. AOL news reported, “The U.N. confirmed that at least 242 women, including 28 minors, were raped between July 30 and Aug. 2 by Rwandan Hutu insurgents and Congolese rebels in and around the village of Luvungi the North Kivu province, in the eastern part of the country. Many women were raped by up to five or six men. An additional 267 rapes occurred in July and August in North Kivu and adjoining South Kivu province, the U.N. said today. In the village of Miki, 74 people were raped, including 21 minors, some as young as 7, and six men.”

Moreover, AOL reported, “The U.N. maintains one of the world's largest and most expensive peacekeeping forces in the Congo, and the fact that one of its outposts was close to the terrorized villages has raised questions about the mission's purpose.”

All eyes are now on Kenya's leaders as they face an intensive legislative process to implement the reforms approved by the referendum. Successful and peaceful implementation of reforms would strengthen Kenya's image as the gateway to the East African region.

However, effectively dealing with the masterminds of Kenya ’s worst ethnic-instigated violence will be shrouded by political bickering within the coalition government so long as the perpetrators go scot free with impunity.

Hussein Moulid Bosh is a Kenyan-born Somali freelance journalist, covering stories around East Africa and also the Horn of Africa countries, especially Somalia.

Photo: AP Images

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