There are good reasons why the government is breaking its back to promulgate legislation on a local tribunal to handle post election violence cases. The most obvious of these is the pressure from international interests led by Kofi Annan.
For reasons not yet clear, the International Community wants the trial of suspects in post election violence cases carried out at home. May be the whole Kenyan story is now tiring and the international community wants to put it behind them and more on to something else.
It is not far fetched to imagine that the rest of the world does not want to get tangled up in our mess for years without end. They would want to see a tribunal set up in Nairobi, run by Kenya and paid for by Kenyans. Once it is up and running, Kofi Annan can be left to prefect it and every one else can concentrate on more important issues like Iran and North Korea.
Another possibility is that some countries like America are not that keen to promote the International Criminal Court. America was one of the seven states that voted against the Rome statutes that set up the court and has been uncomfortable with the whole idea of a world criminal court.
America wanted the International Criminal Court established under the United Nations Security Council which would decide which cases the court could and could not prosecute. As a permanent member of the Council with a veto power, America could thus control the powers of the court.
Our government, as you can imagine, is quite powerless in this situation. For once, I am quite sympathetic with the Prime Minister and the situation he find himself in. He has no choice but to go along with the preference of the international community yet this has become a very politically expensive position for him.
Amazingly, it is said that the suspects of the post election violence cases want the Hague option. In their view, the procedures involved before a case can be commenced at The Hague are so long and convoluted that it will be a long while before they are ever called to answer.
Others, however, have more honourable concerns. The investigation process of a local tribunal will invariably involve local policemen and law enforcement officers. We all know how immune our systems are from manipulation! Some suspects are therefore quite genuinely concerned about these processes and prefer to stake their hopes on the independent investigations of The Hague prosecutor.
In demanding a Hague solution, the suspects have the surprising support of their enemies at home. Those who want to see the suspects tried and jailed are campaigning for the trials to take place at the International Court.
Their fear is the same as that of some suspects; that local institutions are so amenable to manipulation that no justice could result from a local trial and examples abound of cases with no end and trials that go from year to year.
Looking at local realities, and the magnitude and significance of some of the intended trials, the Hague looks more like the only assurance that some justice can be done This feeling is fueled not only by our experiences with judicial systems in Kenya but also the inability of the government to convince Kenyans that this system will be different from what we are used to.
But other than the susceptibility of local institutions to manipulation, victims of the post election violence are also concerned by the political latitude suspects will enjoy in a local trial.
Firstly, in all likelihood, suspects charged in the local tribunal will be constitutionally entitled to bail unless charged with murder. While out, they can manipulate and intimidate witnesses and play to the public gallery. We have all seen crowds of supporters transported to court rooms to create side shows for political cases.
We can also expect that every funeral will became a platform for campaign against the locally conducted trials with suspects taking their cases to the court of public opinion. Facts will be misrepresented, victims castigated and ethnicity whipped up all over again.
Victims of the violence know that with a Hague trial, the suspects will be transported to the Netherlands where they will remain for as long as the trial goes on. Most likely, these suspects will be held in remand jails.
Those who survive the trials at the Hague will came back shorn, shaken and intimidated into a respect of the law. Those who survive trials in Kenya will be brash and boisterous, and mocking to their accusers. Victims therefore want the former.
With the Hague option though, we would lose two benefits. Firstly, the local tribunal will develop our local capacity to handle cases of such magnitude. Maybe we could eventually maintain the tribunal as a permanent court to try abuses of human rights. However, it could be said if we cannot make better what we have already, we should not try new things yet.
Secondly, the local tribunal would handle more cases and deal with the post election matter more thoroughly than The Hague. At The Hague, they only want the “big fish”. They will not track down the common murders and arsonists.
But in Kenya, what we can’t get are the “big fish”. We only arrest and try the common criminals. In this way too, The Hague, by helping us bring the “big fish” to account, is the better option. It is better to try only three lions at The Hague and jail then, than keep conducting a local circus with a hundred rats.