What if?

One of the arguments advanced in calling for the halt of the trials of Kenyans at The Hague is that we now have the capacity to investigate such offences and try them in a just manner. Is this true?

An administration of justice system relies on police investigations that are credible, and the rule of law when a prosecution is conducted in the courts. The rule of law means that judges will make determinations without considering the status of the accused. These two elements are yet to be credibly tested in Kenya.

Those hailing the reforms in policing should look at the manner in which the investigations into how the offences committed in 2007 and 2008 were handled. When the Director of Public Prosecutions examined three hundred files relating to the offences, he determined that none of them could proceed to trial because of the quality of police investigations. The oft repeated description of the investigations was "shoddy." One of the persons fingered by Witness No 536 in the trial of the Deputy President and a radio journalist was acquitted by the courts in Kenya because of the poor quality of the investigation into the murders that were committed when the Kiambaa Church was set on fire. He was not acquitted because he was innocent; he was acquitted because the police did a bad job in collecting information, evidence or testimony that would persuade a magistrate of his guilt, or exonerate him, after a trial.

Two of the persons being tried at the International Criminal Court are the President and Deputy President. Their status in Kenya is among the highest, if not the highest. Even before they were fingered by the Prosecutor of the ICC, the accused enjoyed prominence in Kenya. Mr Kenyatta is the son of Kenya's first President; Mr Ruto is renown as the leader of the disparate tribes known as the Kalenjin. Both wielded great political power then, and greater still since their election. And despite claims to the contrary, the rule of law is not applied impartially in Kenya; status is still vital and it bends the court, every now and then.

Much has been made of the fact that the ICC Prosecutor relied on civil society organisations, and the Kenya National Commission on Human Rights, in his investigations into the Kenya situation. The main complaint has been that civil society and the KNCHR have had it in for the President and Deputy President for the longest time possible. There is much truth to this; the campaign of the former chairman of the KNCHR against the two, first to prevent them from standing in the March 4 general election, and second to see them tried at The Hague is a mark against the Commission. But the alternative is equally troubling.

The ICC does not have a separate police force of its own capable of conducting credible investigations. It must rely on sources on the ground in the countries where it conducts investigations. In Kenya, it could have relied on the police, especially the Criminal Investigations Department. But given the political power wielded by the two main accused, and the efforts of the Executive to stymie its initial investigative efforts, it is not surprising that it also relied on the KNCHR and civil society groups with axes to grind.

What this means is that it is facile to claim that an investigation against Mr Kenyatta and Mr Ruto would have been credible whether or not the ICC relied on non-state actors (though the KNCHR is a state actor.) Kenyans must admit, if to themselves only, that the possibility of credible investigations went out the window when the police could not mount credible prosecutions of the "low-hanging fruit" of those ho had been identified in rapes, acts of arson, mutilations or had been clearly identified committing acts of murder. This had been made impossible when politicians, including the former Prime Minister, coming to the defence of "youth who had only come out for peaceful mass action" and asking the State authorities to let them go.

If Mr Justice Waki had not created a secret list of suspects, and if he had not handed over the list to the AU mediator, and if he had not asked for a special mechanisms to deal with the events of 2007/08, and if he had not asked that the ICC be involved in the affair, would there have ever been trials to address the affair in Kenya? When Mwai Kibaki and Raila Odinga endorsed the findings of the Waki Commission report, they set the stage for the involvement of the ICC. If only the Tenth Parliament had ignored the short-term political advantage of stymieing the establishment of a "local mechanism," the President and deputy President would not be in the cross-hairs of the ICC. Maybe by now they would already have been exonerated for the crimes committed and they would have more vital things to worry about in governing the country.