Former United Nations Secretary General Kofi Annan, who mediated a power-sharing agreement between Kenya's two main political parties last year, expressed his disappointment with the Kenyan parliament's failure to pass a bill to create a tribunal to try those suspected of organizing violence following the country's 2007 elections. He said he would follow the recommendations of the commission that proposed the tribunal, which include the possibility of forwarding the names of suspects to the International Criminal Court.
Kenya's government made one last push on Thursday to pass a constitutional amendment that would create a special court to try the people suspected of the greatest involvement in organizing political and ethnic violence following elections in December 2007. Over 1,300 people died, and hundreds of thousands were displaced by clashes from December 2007 to February 2008.
President Mwai Kibaki and Prime Minister Raila Odinga, who share power under an agreement mediated by Annan, attended parliament in effort to rally support for the bill. While 101 lawmakers voted for the legislation, versus 93 against, that was short of the 145 votes that were needed.
Mr. Odinga expressed disappointment in the outcome.
"It is a setback in the war against impunity and injustice," he said. "But the government will take stock and we will move forward."
Opponents of the bill, led by Gitobu Imanyara, said they lacked confidence that the tribunal would be free of political manipulation, pointing to previous ineffective government investigations. The government commission that proposed the tribunal said that if the government failed to create a local court, the names of suspects could be forwarded to the International Criminal Court in The Hague.
This appeared to be a goal of many of those who voted against the legislation in parliament, where cries of "The Hague! The Hague!", and "Let us not be vague, let us go the Hague" could be heard.
But many civil society groups, generally strong supporters of the ICC, have been recommending a local court, since the ICC would take a long time to act and might not even take up the case. Those arguments were echoed by the Minister for Nairobi Metropolitan Development, Mutula Kilonzo.
"The assumption that the ICC process, The Hague process is automatic, it isn't. It's a very complicated process," Kilonzo said.
Diplomats from donor countries have also been endorsed a local tribunal. ICC Chief Prosecutor Luis Moreno-Ocampo has said he is following the situation in Kenya. But many doubt that Kenya's case is grave enough to be taken up, given that the current cases deal with cases of failed states and active civil war.
Many lawmakers may also be using support for the ICC as a cover for rejecting a tribunal that could target them or their allies. Indeed, many of those rejecting the local tribunal come from the Rift Valley and Central Kenya, the areas most affected by the clashes, and whose leaders are considered some of the most likely to be investigated.
In a statement, Annan called the bill's rejection "a blow to efforts aimed at ending the culture of impunity in Kenya." He said that Kenyan leaders would have to redouble their commitment to the reconciliation steps they agreed on at the time of the power-sharing agreement if they want to avoid a return to violence in the immediate future.
Under Kenyan law, the bill cannot be reintroduced for six months, though there might be the possibility of legal maneuvers to get around that restriction. But following the recommendations of the Waki Commission that proposed the tribunal, Annan now has the option of passing on the names of suspects - which have not been released but which are believed to include five cabinet ministers and other powerful political figures - to the ICC.
In his statement, Annan said he would follow the "spirit, letter, and intent of the Waki report" in moving forward, interpreted by some observers as an indication that he could send the names to the ICC.