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Groups Urge Caution in Bringing ICC to Kenya


Consideration of a bill to create a tribunal to try the alleged perpetrators of post-election violence in Kenya has been put off for another week, amid growing discussion of the possibility of sending the suspects to the International Criminal Court in the Hague. But legal and civil society organizations are warning that the international court may not be as effective a solution as some have argued.

Tuesday, Kenya's parliament again failed to consider legislation that would create a special tribunal to try those suspected of organizing the ethnic and political violence that followed the country's 2007 elections. The strife left more than 1,000 people dead and hundreds of thousands displaced.

President Mwai Kibaki and Prime Minister Raila Odinga met lawmakers from their parties Tuesday to try to rally support for the bill, but without success. When parliament met, not enough lawmakers turned up to consider the bill.

Many of its opponents argue that the proposed tribunal would be vulnerable to political manipulation, particularly given that many of those suspected of involvement in the clashes are cabinet ministers and other influential political figures. There is a fear that, as with numerous previous commissions and investigations launched by the government, the tribunal would end up accomplishing little.

Kenyan media has been abuzz, in recent days, about the possibility of sending the suspects to the International Criminal Court. The commission that proposed the tribunal says it would pass the names of suspects to the international body, if the Kenyan government failed to meet a series of deadlines in setting up a local tribunal. The deadline to pass legislation passed at the end of January and hearings are supposed to begin by March First.

But a number of legal and civil society organizations, generally some of the most vocal critics of government investigations, have been trying to pour cold water on the enthusiasm for involving the ICC.

Florence Jaoko, head of the Kenya National Commission on Human Rights warned this week that sending the names of suspects to the ICC does not mean that the court would agree to investigate them.

"There is no guarantee that all cases referred to the ICC will be dealt with. From experience we know that over 3,000 cases have been referred to the ICC since its inception over the past five years, and most of them have ended up being dismissed," said Jaoko.

She called for the government to make improvements to the proposed local tribunal, including heightened protection for witnesses and a more independent mechanism for picking the tribunal's judges.

Legal groups, including the Law Society of Kenya, have advocated making changes to the current legislation. The head of the Kenya chapter of the International Commission of Jurists, Wilfred Nderitu, says that, even if the ICC took up the case, its investigation would take longer than many in Kenya would like. He predicts it would have achieved little before the next elections in 2012. He also argues that Kenyan leaders would likely try to shield themselves from international prosecution, citing the example of Sudan's President Omar al-Bashir, who has been backed by the African Union in opposing a potential arrest warrant from the ICC.

"You have seen the approach that African leaders have taken with regard to the warrant of arrest against al-Bashir," said Jaoko. "Do you expect the Kenyan government or the powers-that be, whoever might be implicated in this, will not be using the same approaches to get the rest of the African continent to come to their side?"

The government appears to have registered these appeals and now says it will consider amendments to the current legislation before reintroducing the bill next Tuesday.

But others are less optimistic. Lawmaker Gitobu Imanyara, who has spearheaded the efforts to derail the legislation in parliament, suggests that the government will instead use the extra time to buy the votes of lawmakers.

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