Reforms In The Time of Anti-reformers

Court of Appeal Judge Phillip Waki this week set out the case for Kenya to holds its own local trials of the perpetrators of the 2007-2008 post-election violence, alongside the investigation of top level public leaders now being pursued by the ICC.

Waki was the chairman of the commission of inquiry into the violence set up by Kenya as a tribunal separate from its discredited judiciary and won accolades for his leadership.

In his first public statement since the ICC issued summons against six prominent Kenyans, the judge addressed a two-day retreat organized by the Open Society Justice Initiative and Open Society Initiative for East Africa. The event was attended by Kenyan and foreign civil society actors, academics, diplomats, and others to reflect on how justice can be ensured for all affected by that violence three years ago.

Waki stressed that the commission he chaired “gave the state the first option to deal with its local justice problems” by settling up an independent tribunal.

But it also drew a list of those it believed were the main perpetrators of the violence, which was sealed in an envelope and given to former U.N. Chief Kofi Annan, who was the chief mediator of the Kenyan crisis. Mr Annan was to keep the names in trust until Kenya formed an independent tribunal. After that failed to happen, the envelope was passed on to the ICC prosecutor.

However, even with the ICC involved, Waki argued that there is a need for a credible local process because “in truth the perpetrators are in their hundreds at different levels of our community” and cannot all be tried at the ICC. Therefore Kenya still needs to investigate and try those cases. This is something ICC Prosecutor Luis Moreno Ocampo has also repeatedly said.

Waki identified six challenges to ensuring all perpetrators are brought to justice. Among them are the criminal justice system’s lack of adequate technical capacity, the limited place of victims in it, the lack of an independent witness protection scheme, and the system’s limited response to gender-based violence. As a final challenge, he identified “the inadequate political will to deal with impunity.”

His observations echoed what was emerging as a common theme across the different discussion groups during the retreat – with participants expressing concern that the notion of establishing local trials should not be used as a device to enable politically well connected perpetrators to escape prosecution.

Apart from Waki’s speech, the discussions were based on the Chatham House Rules, which restricts reporting to not identifying participants or their affiliation.

Two schools of thought emerged with one common denominator: that civil society must develop a common front.

The first school of thought advocated developing strategic alliances with reform-minded politicians because they have the numbers but civil society has the ideas.

The other school of thought advocated going for the harder slog of reaching out directly to the public and working to get the numbers independent of the politicians. This school of thought does not believe in working with politicians because that was done before in the 1990s during agitation for a new constitution.

But whenever politicians felt their interests threatened they easily went to the negotiating table, leaving out civil society but adopting some of its ideas without so much as a Thank You note. This school of thought believes change can only come if there is a critical mass of reform-minded individuals in the legislature, judiciary, and executive arm of government as well as outside government.

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