Except instead a samurai sword-wielding Bride, we have our MPs in Parliament rejecting a Constitutional Amendment Bill that would have led to the creation of a Special Tribunal to investigate, prosecute and punish perpetrators of the Post-Election violence.
The cries among wanainchi: ‘Wapeleke Hague!’ seem to have finally caught the ears of parliamentarians.
Unfortunately, the Hague is not Hades. Neverthless it is still my honest belief that anyone who was in any way involved in the commission of the atrocities during our post election era deserves to go straight to hell.!(pardon my french).
However, the reality of the situation is that it will be virtually impossible to have our perpetrators of crimes against humanity prosecuted and punished at the ICC. This is because Kenya, unlike most war-torn African nations that have sent their criminals to the Hague, has national mechanisms that could have been put in place to bring all such criminals to justice.
Access to the Hague is not automatic even in cases as serious as Kenya’s. Access can only be granted on one of three grounds:
i) A referral by the UN Security Council through a resolution (as was the case with Sudan and the Democratic Republic of Congo);
ii) A referral by a government (such as the cases in Central African Republic and Northern Uganda); or
iii) Initiation of an investigation by the Prosecutor mero motu — on his own authority (no case so far).
Even assuming that Kenya somehow finds a way to have its case heard at the Hague, we must bear in mind that the ICC is a criminal court just like any other and we all know that criminal proceedings take ages before any sort of justice prevails.
So once again, I ask, why were we SO eager to have our despicable hate-mongering warlords sent to the ICC? I understand that we wanted to have our “leaders” punished for their heinous crimes in a neutral setting where they have no immunity or means of manipulating the system and finding loopholes to escape prosecution.
BUT, I still dont see why we couldnt have insisted on having ONE impartial Kenyan Tribunal made up of members from all branches of government as well as members of the public. This body would combine the powers and duties of the would-be Special Tribunal and a Truth, Justice and Reconciliation Commission. Such a body would not merely be charged with bringing post-election criminals to justice. It would also seek to “promote accountability and end impunity in order to build a new society based upon respect for human dignity, democracy and the rule of law.”
Sending Kenyan criminals to the Hague (if it is at all possible) would only serve as a deterrent for those would-be individuals inciting ethnic violence but it does not tackle the root causes of the ethnic tensions in Kenya which hardly started in 2007.