Dear Foreign Minister:

We are writing to urge you to adopt conclusions at the upcoming meeting of the General Affairs and External Relations Council (GAERC) or an EU Declaration expressing support for the establishment of a special tribunal in Kenya to try those most responsible for last year's post-election violence and calling on Kenyan authorities to immediately renew their efforts to revise and enact bills to create the tribunal.

Kenya is at a pivotal moment. The coalition government is in jeopardy. The agreed reform agenda is stalled. Investigating and prosecuting the perpetrators of the devastating post-electoral violence of a little over a year ago is the surest way to restore public confidence in the government, open the door to reforms, and ensure that future elections are peaceful. Firm public leadership is needed from Kenya's coalition government to overcome resistance from certain parliamentarians who, fearful of being held to account for their role in directing the violence, are willing to risk subjecting the Kenyan people to a new round of bloodshed. Ridding the cabinet and the police service of those most responsible for the election violence is a necessary step to implementing the reforms that Kenya so badly needs. As long as the chief proponents of the "old", violent brand of politics remain in place, Kenya's government will remain stuck in a cycle of impunity and corruption.

As you are aware, the Commission of Inquiry on Post-Election Violence (Waki Commission) was set up by the Kenyan coalition government of national unity as part of the peace and reconciliation mediation process that brought the violence of early 2008 under control. The Waki Commission rightfully pointed out the central problem of impunity in Kenya's politics and crisis of governance. Certain officials, politicians, and community leaders resorted to violence in 2007 and 2008 as many others have done before them, because they calculated that they could get away with it-a historically correct assumption.

To end that impunity, the Waki Commission recommended establishing a special tribunal in Kenya to investigate and punish the orchestrators of the violence. To avoid the tribunal being infected by the corruption and political interference that so often undermines Kenya's regular justice system, the commission recommended that extraordinary steps be taken to guarantee the tribunal's independence, including involving international jurists among the judges and prosecutors, establishing an independent budget and constitutional authority outside the regular justice system, and drafting special rules on appointments and immunities. It also encouraged the International Criminal Court (ICC) in The Hague to play a back-stopping role should things go wrong by requiring former United Nations Secretary-General Kofi Annan, the broker of the original agreement that stopped the violence, to pass a sealed envelope with the name of the chief suspects to the ICC in the event a special tribunal is not established.

But in February the Kenyan parliament rejected a bill to make the constitutional changes needed to secure the special tribunal's independence. President Kibaki and Prime Minister Odinga made little effort to marshal support for the bills and to impress upon lawmakers their collective responsibility to establish the tribunal as a means to provide accountability. Certain ministers with the most to fear from vigorous, independent prosecutions said they preferred to delegate the matter to the ICC, ostensibly because of its greater independence. If the special tribunal fails to conduct investigations and prosecutions in a credible and impartial manner, however, the ICC may still act independently to intervene as a court of last resort. The individuals who claimed opposition to the special tribunal in favor of the ICC thus did so because they calculated that the ICC was less likely to act quickly or effectively to deliver justice.

The question that the European Union should pose to Kenya's parliament, and the message that EU missions should press home to individual members of parliament is: does the parliament want to earn itself an international reputation as a defender of impunity?

Kofi Annan has shown vigorous commitment to the special tribunal and to accountability for last year's violence and has twice extended the deadlines for the establishment of the Waki Commission. He most recently said that if there were no special tribunal by the end of the summer then he would be forced to hand the envelope of suspects over to the ICC.

The EU should reinforce Kofi Annan's efforts as a matter of priority and impress upon Kenya's policymakers the urgency of establishing the special tribunal. As a signatory to the Geneva Conventions and to various human rights treaties, and as an ICC member state, Kenya is obligated to bring to justice perpetrators of serious international crimes. The EU should make it very clear that Kenya cannot simply choose to abdicate its responsibility as a state and fail to prosecute those who caused death and destruction last year.

If properly instituted, there is no question that the proposed special tribunal would offer several advantages to prosecution by the ICC. The ICC would likely hold trials in The Hague, while the special tribunal, a Kenyan institution, would hold trials within the country, making the experience more accessible to the Kenyan people-a critically important point given the rising public anger and disappointment in Kenya's longstanding impunity. A special tribunal would also leave a legacy of experienced prosecutors and investigators to address political violence in the future. The ICC would pursue at most the top handful of officials involved in the violence; the special tribunal and other national accountability processes could prosecute a more comprehensive set of those responsible for the killing and other abuses. It is likely that national investigations and prosecutions could also be conducted more quickly than those of the ICC, which will need to develop specialized expertise on Kenya. Swift action is required now before electoral tensions flare again.

Unfortunately, the bill for a special tribunal initially introduced by Kenya's government was poorly prepared, leading even some genuine proponents of justice to oppose it, and leading to its defeat. The government can enlist the support of those who want justice, while isolating the opponents of fair prosecutions, through greater care in preparing a new bill for submission to parliament, inviting consultation with nongovernmental organizations and MPs prior to the bill's introduction, and through strong leadership to isolate the spoilers in cabinet and parliament.

The European Union has an indispensable role to play in bringing pressure to bear on President Kibaki and Prime Minister Odinga toward this end.

We urge the European Union to demonstrate its commitment to accountability for serious international crimes and to a stable future for Kenya by insisting in GAERC conclusions on the urgent establishment of the special tribunal and:

  • Call on the Kenyan government to consult broadly in advance of submitting a new bill, with not only parliament but also civil society and the legal community, to identify perceived problems and take corrective measures, and
  • Call on both President Kibaki and Prime Minister Odinga to use their political authority to send a strong public message that the special tribunal is essential for Kenya's stability and security.

Kenya's government faces a critical test, and failure could be catastrophic, not only for Kenyans but for the region. The EU's message should be that the Kenyan government and the Kenyan parliament must take the lead and bear primary responsibility for seeing justice done. The EU should stress that establishing the special tribunal is the best way to break the deadly cycle of violence and impunity in Kenya, pave the way for reforms, and deter the devastation that would come from another round of political violence.

We thank you for your attention to this important matter.

Sincerely yours,

Lotte Leicht                                                               Georgette Gagnon
EU Director                                                                Africa Director
Human Rights Watch                                                 Human Rights Watch

CC:   EU High Representative for the Common Foreign and Security Policy, Dr. Javier Solana
European Commissioner for Humanitarian and Development, Mr. Louis Michel
EU PSC Ambassadors
EU Political Directors
EU Member States Ambassadors to Kenya
President of the European Parliament, Dr. Hans-Gert Pöttering