THE NOMINATION WRANGLE BETWEEN THE PRESIDENT & THE PM THREATENS THE ESTABLISHMENT OF A CREDIBLE JUSTICE SYSTEM, WHICH IS OUR FIRST LINE OF DEFENCE AGAINST IMPUNITY, & OUR ONLY PROTECTION AGAINST FUTURE ATTEMPTS TO USE VIOLENCE, ESPECIALLY IN ADDRESSING ELECTORAL DISPUTES

Following the disputed presidential elections of 2007, two positions were taken by the two main competing parties:
PNU, the party under which Mwai Kibaki ran for his second term insisted he had won and stated that any election disputes should be taken to the courts. Hon. Mwai Kibaki was then sworn in for his second term as president and proceeded to form the government.
ODM, the party under which Raila Odinga ran for president insisted that they had been deprived of their victory, but declared that the Kenyan judicial systems was politically compromised and justice would only be served through civil disobedience, and they called for mass action.

These two positions and the resultant actions led directly to the deaths of over 1,300 people, the rape of over 3,000 women, the displacement of over 600,000 people, all Kenyans. These terrible crimes have now been sanitized by being referred to as Post Election Violence. However, the truth of the matter is that crimes were committed that will forever be an un-washable blot on our history, locally and internationally.

Following the presentation of 2 cases and 6 names to the ICC on 15th December 2010 by ICC Prosecutor Mr Luis-Moreno Ocampo an aggressive campaign has been run by some members of the government indicating that with a new Constitution, Kenya now has the capacity to institute credible justice systems through which cases against perpetrators of the Post Election Violence can be prosecuted and brought to justice, and therefore the ICC should allow Kenya to try these 2 cases as well. In what can only be related to this position, the President has nominated people to be appointed as Chief Justice, Attorney General and Public Prosecutor.

However, his co-principal and the Prime Minister insists that he was not consulted in the nominations: that these nominations contravene the Constitution of Kenya, and that these nominations are null and void. He also states that these appointments have been made to serve the interests of a few people who include elements within upper echelons of government who have serious credibility and integrity issues, and who constitute the networks of impunity.


This intra-government disagreement on the issue of due process as regards these nominations means that the integrity of the Judiciary, which is our first line of defence when aggrieved, has been compromised, again. It also means that in 2012 the stage has been set such that a loser in any election can mobilize his or her supporters to violence by insisting that the heads of our judicial system were appointed illegally.

The current stalemate must be urgently remedied to avoid the dangerous ramifications that would result from it. We therefore call upon the nullification of these nominations, and the institution of a transparent and all inclusive process that adheres to the constitution requirements, and that also generates confidence from both wings of government as well as all sectors of society. This will ensure that no one will ever be able to question the credibility of our judiciary again, especially as regards electoral competition.

The statement by the Prime Minister about how and why these appointments have been made also casts suggests the possibility that some amongst the current political elite could attempt to compromise any local systems to prosecute perpetrators of the hideous crimes committed during the post election period, especially for those cases against those assumed to bear the highest responsibility. The fact that the two principals cannot agree on such crucial nominations also means that any proposal to defer the ICC cases pending the establishment of credible local judicial processes is not based on substance from within all of government.

We therefore state as follows: That the ICC prosecutions are still Kenya's best chance of knowing the truth about the 2007 PEV
That the truth that will come out of the ICC prosecutions will work against the ever-increasing narratives of inter-ethnic grievance and mistrust that tend to be the basis on which political competition for Kenya’s state power has been conducted since the introduction of multi-party politics. This strategy led to the 1992, 1997 and 2007 PEV, and we cannot afford to go into another election without getting rid of them
That the ICC prosecutions will jumpstart Kenya on the journey of seeking justice for the victims of all Post Election Violence to-date, because it debunks the myth that there exists any Kenyan who is above the law. This is necessary in a democratic state especially if we are ever to locally prosecute other crimes inherent to Post Election Violence, in future.
That our current justice systems are not able, ready and/or willing
That the MPs have always overwhelmingly supported the ICC process, and are the ones who introduced the statement ‘Do Not Be Vague, Go To The Hague’. The recent turnaround is suspicious, and in our opinion it is driven solely by the sudden realization that the 2 cases might adversely affect the political careers of some politicians. We state here that this is self-seeking, and a slap in the face of the millions of Kenyans who are today psychologically and/or physically traumatized by what happened during the 2007 PEV. It is also disrespectful to the memory of the over 1,300 Kenyans who died, and an insult to the over 650,000 Kenyans who were rendered homeless. to prosecute PEV perpetrators, as has clearly been shown by the fact that in three years since the 2007 PEV we have not successfully prosecuted any perpetrators of the violence. In addition the investigative and judicial systems to be established as required under the new constitution, and which could successfully prosecute cases of the magnitude


This is the position of hundreds of thousands of Kenyans who have already signed a declaration confirming that the Kenyan political establishment must allow the 2 cases at the ICC to proceed to their logical conclusion. These Kenyans are part of the ongoing ‘One Million Kenyans Say YES to the ICC’ campaign that will conclude with the presentation of this declaration to the Government and Parliament, accompanied by the signatures of one million Kenyans.

In conclusion we urge all our political leaders to always be guided by what is in the interest of the greatest number of Kenyans. This is especially in regard to the implementation of the new constitution, which process is already behind schedule.

Signed
NGUNJIRI WAMBUGU
Executive Director, Change Associates
(0724958331)

Kelvin Mwangi,
Nairobi.