The Hague or Local Tribunal? A dilemma for the political elite

Which way to go?

By Ohaga Ohaga

Let me start by saying that irrespective of which way we prosecute the post election violence perpetrators, (The Hague or local tribunal), if the Truth Justice and Reconciliation Commission is not fast- tracked and implemented- then the general elections in 2012 will be like a Christmas party for the devils.

I am not a prophet of doom but anyone who witnessed the violence immediately after the announcement of the election results in the 2007 general elections, would agree with me that there are so many underlying factors than what we are being made to believe and far deep atrocities that have been committed by our politicians that led to the violence.

For the past one and half years, Kenyans have been treated to media frenzy topic: whether the post election engineers should be prosecuted in the International Criminal Court (ICC) or face a special tribunal back home.

Research has been conducted by almost every researching body in the country including radio stations, newspapers and television channels- all pointing out to a common feeling on the ground- that the post- election chaos suspects be tried in The Hague.

Many voices have been raised on the subject with sides pulling apart on which option is best to take. This nonetheless, has taken us nowhere and we are still grappling with the two ideas.

Many Kenyans nevertheless, view the ICC as the best option since they have lost faith in the corrupt- to- the- knee, malfunctioning and non- performing judiciary in the country.

For decades, many social, political and economic crime offenders especially the political elites have evaded prosecutions because of arm-twisting of the judicial process and influencing courts in their favor.

This therefore explains why very few people would campaign for a local tribunal to try the post poll violence suspects.

I however, tend to differ. Not because I am in support of the architects of the violence but because neither The Hague nor local tribunal will resolve our differences.

Why? Consider the following reasons.

Kibaki or Raila

If there was no Kibaki or Raila; we wouldn’t have gone to war. So the people who should top the Waki secret list in Kofi Annan’s safe custody should be both President Mwai Kibaki and Prime Minister Raila Odinga.

This is based on a very simple logic.

They in one way or another masterminded, or orchestrated or supported or had an idea on what was going on or what was about to happen or the commands that were being issued by their subordinates- and with you permission, I will quote a section of the ICC statutes.

The ICC law which Kenya is a signatory- states:
“A superior shall be criminally responsible for crimes within the jurisdiction of the court committed by subordinates under his or her effective authority and control as a result of his or her failure to exercise control properly over such subordinates, where:
The superior either knew, or consciously disregarded information which clearly indicated that the subordinates were committing or about to commit such crimes; the crimes concerned activities that were within the effective responsibility and control of the superior; and the superior failed to take all necessary and reasonable measures within his or her power to prevent or repress the commission or to submit the matter to the competent authorities for investigation and prosecution.

This section therefore puts both Kibaki and Raila on the spot.

The Hague

Many Kenyans are hesitant in backing the formation of a special local tribunal to try architects of the post election violence mainly because they don’t believe in the judicial system.

They argue that even though The Hague, will take far too long in fighting impunity that has been associated with the Kenyan history, at least justice will have prevailed.

To them, the number of those prosecuted or the period it takes doesn’t matter.

Similarly, the lack of transparency that is associated with many tribunals in Kenya is another setback that makes Kenyans view The Hague as their only option.

The Local Tribunal

For those that support the establishment of the local tribunal, the argument is that the ICC is painfully too slow and will take forever to prosecute the suspects.

And for a country that is crying for justice, this is not the viable option
Two, that the ICC will only go for the top cream offenders leaving a whole lot more suspects in the equation like the middle level and the lower level suspects.

Lastly, that by prosecuting the suspects in the International Criminal Court, the violence amongst ethnic communities may be rekindled taking us back to where we are avoiding.

The Truth Justice and Reconciliation Commission

Unlike in the last two groups, I believe that in trying to avoid a repeat of what happened in 2007, neither the local tribunal nor The Hague, will best serve our case.

In my view, the first fundamental thing we need to do- is to fast track the already established Truth, Justice and Reconciliation Commission and then has it fully implemented.

This way, we will not only bring together the various warring communities but will as well deal with the historical and transitional injustices and the far more important land issues among many other things.

Once this has been implemented, we can now move to the second step which involves prosecuting the suspects either locally or internationally.

What makes the last option better than the rest is that there will be peace, the truth will have been known on who did what and where and there will be forgiveness amongst us.

So irrespective of where the suspects are prosecuted, we will be prepared for it.

Besides, it has worked in Liberia- a country that experienced a similar situation we are facing.