Kenya - ICC move an indictment of our justice system (editorial)

November 18th, 2009

 

 

Nairobi (Kenya) — The International Criminal Court's decision to pursue the masterminds of the violence that erupted after the 2007 General Election marks one of the lowest points of this nation's institutional history of governance.

The Police Force, the Judiciary and the office of the Attorney-General, in particular, bear responsibility for their failure to prosecute suspects locally.

The offences that were committed in the two months of mayhem that followed the disputed presidential election results are covered by the Penal Code. Murder, rape and robbery with violence are all crimes under Kenyan law.

Yet the police abjectly failed to undertake meaningful investigations into this lawlessness. The Attorney- General's office failed to successfully prosecute any suspects, and the Judiciary, given its history, was not expected to swiftly dispense justice.

The fact that the government saw the need to pass a Bill in Parliament to set up a tribunal to try suspects is an indictment of the state of the institutions that are supposed to discharge their mandate without recourse to special legislation.

As Kenyans wait to see what action the ICC will take in the coming months, questions should be raised whether the heads of these institutions that failed to exercise their duty should remain in office.

Maj-Gen Hussein Ali has already been replaced as police commissioner. That leaves two constitutional office holders, Attorney-General Amos Wako and Chief Justice Evan Gicheru, still holding on to their positions.

It is true that the State Law Office and the Judiciary suffer from major systemic problems that cannot be resolved simply by the replacement of individuals. But these heads of department have been in office for many years without demonstrating that they appreciate the need for reforms.

Mr Wako was attorney-general when the Akiwumi Commission of Inquiry into the violence that followed the elections in 1992 and 1997 recommended that the AG prosecute suspects.

Mr Wako and the Police Force then indulged in a round of blame games, and no action was taken. It was, therefore, always unlikely that the same Attorney-General would make any serious moves to prosecute perpetrators of the post election violence.

Mr Gicheru has been in office since 2003. Close to seven years since he took over, the Judiciary commands little confidence from the public. Judges still take notes by hand, files "disappear" regularly from the registry, and efforts at modernisation remain minimal. The removal of these two individuals will not be the magic wand that will usher in reform.

But the two need to realise that the nation wants crucial institutions to be led by people with an appetite and enthusiasm for reforms, rather than by complacent types who were in charge when the nation nearly descended into chaos.

It is right that the ICC should prosecute the men and women who financed the post-election violence. But the time has come for Kenya to reform its own institutions so that it does not need to turn to the international community every time it faces a crisis.

As a first step, Mr Wako and Mr Gicheru should assess themselves to determine whether their continued stay in office adds value to the reforms that will inevitably sweep the land. Amidst all this, attention must remain focused on the many other changes promised under the framework of the National Accord.

Mass youth unemployment remains a big problem. The debate on other important reforms appears to have died on the vine. No sector needs more urgent overhaul than our land governance system. Inequitable distribution of land was identified as a major underlying cause of the post-electoral violence.

This and other reforms should not be forgotten as we pursue the much-needed changes at the Judiciary, the State Law Office and the Police Force.

 

source.The Nation (Kenya)