The debate about amnesty in Kenya has become intensely politicized. The Prime Minister and the President are taking apparently opposing positions. The dangers of the debate turning sour are obvious, threatening to undermine the fragile solidarity that gave birth to the National Accord and Reconciliation Act and the coalition government. What should be the way forward?
The debate is clearly fuelled by political considerations, but it shouldn't be. There is in fact very little to debate at all. The issue need not be politicised, if all sides simply commit to respect and follow the rule of law.
Kenya is now at a difficult moment in its history. The country has the opportunity to address historical injustices through the commissions and reforms promised by the coalition government. But, as we have seen in the past, this window of opportunity is a fleeting one. If politicians do not rise above their partisan interests, the country's history of impunity, corruption and violence will become its future. In such difficult moments as this, the law is the surest guide to the right way forward. Indeed, how could it be otherwise? How can politicians speak of returning the country to law and order, without observing the law itself?
Amnesty is a delicate tool and should be used sparingly, if at all. Our experience of observing human rights around the globe shows that the best way to safeguard those rights is to make sure that those who violate them are brought to justice. Above all, crimes against humanity, war crimes, genocide, torture, and sexual violence should not be amnestied. Justice is for both the victims and the accused.
Mr. Kibaki and Mr. Odinga are both right. They are also both wrong. Mr. Odinga is right that the people currently in jail are the small fry, the pawns in a larger game, and that the police have questions to answer too, but he is wrong that they should simply be forgotten. Mr. Kibaki is right to want to prosecute them, but holding people without charge or for extended period of times with hearings continually postponed because the police have not made sufficient investigations is wrong.
According to the law and the rights of Kenya's citizens that are enshrined in the constitution, no one should be detained without charge indefinitely. Those who are currently in custody as a result of the post-election violence, some of whom have been held for months, should either be charged or released. Those who are eligible for bail should be allowed bail. The Kenya Police should do their job rigorously, investigate cases, assemble evidence and prosecute suspects without fear or favour. That means the perpetrators who killed and burned in places like Eldoret as well as those who did the same in Naivasha.
Admittedly, the perceived partiality of the police and their uneven response to the violence earlier this year create obstacles to credible investigation and prosecution. In that respect, among the police and security services are also persons who should be subject to investigation and prosecution for their role in extra-judicial killing, excessive use of force and other abuses of human rights committed during the clashes.
The ‘elephant in the room' is of course the fact that some of those who organised and funded the clashes are actually in the government, on both sides, among PNU and ODM. The President and the Prime Minister know this. Their backers among the donor countries know it too. Very soon the commission established to investigate the violence will start holding hearings which will likely embarrass many senior people.
The quarrel about the fate of the ‘youth' or the ‘suspects' in custody is actually a precursor to a larger debate about how the country should deal with leaders who use violence to wage politics.
But this should not be an issue. Both ODM and PNU negotiators already pledged to Kofi Annan to ‘identify, investigate and prosecute perpetrators' of post-election violence. So what is there to argue about? If Mr. Odinga and ODM believe the police and the justice system to be partisan, as part of the coalition government and with their new-found executive powers, it is their duty to make the system work fairly. And if Mr. Kibaki and PNU are really committed to the rule of law and rejecting amnesty then they should ensure that the leaders and inciters of violence (including those among the police and their own ranks), and not just the foot-soldiers, face justice too.
The debate about amnesty is a red herring. It should not be a debate at all. The real discussion is about how to make sure the law and the justice system function properly and fairly so that all criminals face the law. Full restoration of the rule of law, without exceptions, is the only way to ensure that Kenya will never again be subjected to the kind of violent, corrupt politics that nearly tore the country apart in 2008.
Ben Rawlence is Researcher and Clive Baldwin is Senior Legal Adviser with Human Rights Watch.