Bringing powerful politicians to justice is a tough task. But Kenya has learned the price of inaction - a pattern of political violence over decades. Now Parliament has a chance to stop the rot, hold violent politicians to account, and set an example for other countries struggling to make the law reach the most powerful people.
The new constitutional amendment Bill to set up a special tribunal to investigate and prosecute the perpetrators of post-election violence could be Kenya's last chance to open a new chapter in its history. The question is: are the members of Parliament up to the task?
When violence erupted last year following the flawed General Election, killing 1,200 and displacing 600,000, everyone cried, ‘Never again.' Kofi Annan, who brokered the peace deal that led to a unity government, politicians and analysts were united in their assessment that impunity was the root cause of the unrest.
Violence had become an established tool of politicians seeking a shortcut to power. Despite successive public inquiries and promises to prosecute, no one has ever been held accountable. For decades the law appears not to apply to Kenya's elite.
The Cabinet, despite its promises, has refused to change course. Last month, after making a commitment to investigate and prosecute the perpetrators and organisers of the violence, ministers decided to duck the issue and abandon plans for a special tribunal to try them. The Government had promised to set up a tribunal or refer the most serious cases to the International Criminal Court.
‘Do nothing' option
But this debate about the special tribunal versus the ICC was always a red herring because even if the big fish go to the ICC, local courts are not equipped to deal with the rest of the cases. An independent tribunal is a necessity, not a luxury.
Let's be clear: the Cabinet was not choosing the ICC ‘option', nor was it choosing the Truth, Justice and Reconciliation Commission ‘option', for the latter is not an option for criminal accountability. It was choosing the ‘do nothing' option.
A new Bill brought forward by Gitobu Imanyara, MP for Central Imenti, cleverly marries the ICC and the tribunal routes to justice. High level cases may still be handled by the ICC, but the tribunal would tackle the many other suspects and it would do so in Kenya, with international support, setting a model of an independent institution that can work for justice.
This is the ‘two-track' approach civil society has been calling for, and it leaves opponents of justice without any credible arguments against it. Serious questions must be asked of any MP who does not support it, as by opposing it, they are opposing justice.
MPs with nothing to hide and nothing to fear from investigation are beginning to realise that an effective special tribunal may actually be to their advantage in removing from the playing field a whole swathe of their corrupt and venal colleagues, as well as making them heroes in the eyes of their constituents and the international community.
But risking the anger of powerful politicians whose names everyone believes to be in Waki's famous envelope is no small step. Kenyan MPs need support. For only by acting together and ensuring a strong, effective, independent tribunal can those MPs hope to emerge with their careers, and possibly their lives, intact.
Their greatest insurance is in doing the right thing. The international community has said it stands ready to assist the tribunal in every way.
That first step
If MPs, religious leaders, donors and civil society pull together, the scourge of violence can be consigned to history and Kenya can begin a new era in which the rule of law can reach even those at the top. But the MPs need to take that first step.
It may be difficult, but this is what they were elected to do: To ensure rule of law is followed, victims of the violence are not forgotten and criminals are brought to justice.
The Coalition Government pledged to usher in major reforms and stand up for justice where previous governments had allowed impunity to fester. Kenyans hoped for a new dawn in which this sorry cycle of electoral violence would be no more. The leaders have failed to bring Kenya into that new era. This new effort by MPs might be the nation's last chance.
The writer is an Africa researcher for Human Rights Watch.
