Kenya’s post-election crimes cannot be negotiated awayBy L. MUTHONI WANYEKI | Monday, June 18  2012 at  14:25

This past week in Kenya saw the conviction and sentencing to life of Peter Kipkemboi Ruto for the murder of Kamau Kimani Thiongo on January 1, 2008 in Kamura village, Timboroa, Uasin Gishu. His two co-accused, however, remain at large.

The conviction matters because it is one of the few obtained thus far for crimes committed during the period following the disputed announcement of Mwai Kibaki as president. As well documented in a recent Human Rights Watch report, the investigation and prosecution of “ordinary” crimes — crimes contained in our Penal Code and other statutes such as the Sexual Offences Act — has left much to be desired.

Is this the fault of the Criminal Investigations Department, responsible for investigations? Or of the Director of Public Prosecutions, responsible for criminal prosecutions? In part, both. Some criminal cases were withdrawn. Some resulted in acquittals due to poor investigations and prosecutions—as well as, arguably, failures of the Bench.

But it has to be said that we are all culpable for the lack of convictions for “ordinary” crimes committed in early 2008. Community pressure on both sides of the ethnic-political divide when the Grand Coalition Government was formed led to an unconstitutional and illegal stalemate — with up to 300 persons suspected of committing crimes ranging from theft of property to assault to defilement and rape to deliberate infection with HIV to murder, being detained unacceptably long without formal charges.

Politicians invoked the so-called spirit of reconciliation — as though crimes can be bartered and negotiated away. Eventually, so too did the human-rights movement — as the state cannot indefinitely detain people without charging them. Finally, they were all set free.

Criminal responsibility

That was culpability from the bottom-up. Since then, there’s been culpability from the top-down. The entry of the International Criminal Court has led to resistance to the idea of criminal responsibility all around.

Meanwhile, our understandings of the post-election violence have hardened — despite evidence collected by the Commission of Inquiry into the PEV. As far as the AP and the police are concerned, they are not responsible for nearly half of the deaths that occurred. Then-supporters of the Orange Democratic Movement persist in their argument that they were exercising their right to protest. Then-supporters of the Party of National Unity persist in their argument that they were exercising their right to self-defence.

Nobody is prepared to accept criminal responsibility. All the namby-pamby “reconciliation” outfits out there — bands of so-called elders included — act as though criminal law were suspended during that period.

It is unacceptable. Thousands of Kenyans were affected by the post-election violence. Thousands of Kenyans were brave enough to report the crimes committed against them and their families. They deserve their day in court.

We may, with good reason, be suspicious of the motivation behind the DPP’s institution of the Multi-Agency Task Force determining what to do with pending criminal cases from the period. Members of the task force recently reported on their progress to a meeting convened by the International Commission of Jurists-Kenya. They have reviewed 1,432 files or an estimated 6,000.

That report is not yet public. The public must demand it. Even if we believe the DPP is attempting to throw a spanner into the works of the ICC, those crimes must be tried.

L. Muthoni Wanyeki is doing her graduate studies at L’Institut d’etudes politiques (Sciences Po) in Paris, France