For more than a year Kenya’s government has been struggling to reach a decision on how to create accountability for the post-election violence which occurred in the first half of last year. Some want a local tribunal, because local administration of justice is best. Others want the International Criminal Court to control the proceedings because of fears of political interference with a local tribunal. Many of the members of the government do not want any accountability at all because they fear being prosecuted.
It is significant that there was very little recourse to the courts last year for resolution of the disputed election results. The battles were fought in the media and in the streets. This is indicative at the very least of a lack of confidence in the independence of the courts. It is not possible to have a stable democracy if members of the public do not have faith in the integrity and independence of the judicial system.
In my view, the current arguments over the most appropriate forum for trials are largely hot air. Ultimately only a small number of those who have committed very clear and serious crimes are likely to be punished, as the experience of the Rwanda trials has indicated. The vastly more important issue is: How is Kenya going to re-establish confidence in the integrity of the administration of justice, and ensure that powerful people are subject to the same laws as everyone else?