Kenya: Deliver Justice for Victims of Post-Election Violence

The Kenyan government has reneged on commitments to deliver justice for the victims of post-election violence, Human Rights Watch said today. On July 30, 2009, the cabinet announced that, contrary to previous agreements, it would not establish a special tribunal, but would rely instead on a "reformed" national judicial system to investigate and prosecute the perpetrators.

An independent domestic court with international participation remains the best option to start establishing accountability and the government should immediately adopt legislation to establish the special tribunal, Human Rights Watch said.

"Bringing justice to these victims is the most urgent test of the coalition government's willingness to resolve Kenya's crisis," said Georgette Gagnon, Africa director at Human Rights Watch. "The cabinet just resoundingly failed that test."

The July 30 announcement is a U-turn from the government's previous position that the Kenya justice system is deeply flawed and that the regular courts were unlikely ever to bring senior politicians and government officials to face justice. The recommendation of the Waki Commission on Post-Election Violence, which the government accepted and promised to implement in December 2008, was to establish a special tribunal independent of the high court and with international participation to investigate and prosecute the suspects.

"The argument for a special tribunal has always been that the Kenyan judiciary lacks independence, and the necessary root-and-branch reforms of the entire justice system will take years," Gagnon said. "The idea that the existing judicial system can deal with the senior politicians and government officials who allegedly incited and organized the killing is an insult to the memory of those who lost their lives."

As recently as July 3, the Kenyan government agreed with the International Criminal Court (ICC) prosecutor in The Hague that by the end of September it would set out clear benchmarks for a "special tribunal or other judicial mechanism adopted by the Kenyan Parliament." The government had agreed that if there was no parliamentary agreement on such a mechanism, it would refer the case to The Hague.

Parliament rejected the draft legislation establishing the special tribunal in February, and since then, there has been no parliamentary debate, let alone agreement on the issue of how to deal with the suspects.

Kofi Annan, the chair of the panel of eminent Africans who negotiated the National Accord that led to the coalition government, repeatedly extended the time for the Kenyan government to take action on a national solution. On July 9, Annan handed over the Waki Commission's evidence and its sealed list of suspects to the ICC, a step the commission had recommended in the event that a special tribunal was not established.

"After months of delay, the cabinet has finally declared that it is unprepared to carry out the principal task for which the coalition government was formed: to end Kenya's decades of impunity," Gagnon said. "The only credible option for the government to gain public confidence is to establish the special tribunal immediately or to refer the cases to the ICC."

On July 27, foreign ministers of the European Union called on Kenya to establish the special tribunal, along with carrying out the broader reform agenda provided for in the National Accord.

"Reforms of the national judicial system are badly needed, but they alone will not bring to account perpetrators of the worst crimes committed during the post-election violence," Gagnon said. "The US and Kenya's other international partners should insist in no uncertain terms that, until an independent judicial mechanism is established in Kenya, there can be no 'business as usual'."

Any judicial mechanism adopted by the Kenyan parliament should conform to the recommendations of the Waki Commission and international standards - principally, that it should be independent of the High Court and the attorney general, that constitutional immunity provisions should be waived, and that suspects charged before it should resign their posts pending prosecution.

The cabinet also announced planned changes to the Truth, Reconciliation and Justice Commission (TRJC) although it did not provide specific details. Human Rights Watch said that changes that strengthen the commission are welcome, but could not be a substitute for credible prosecutions consistent with international fair trial standards.