It is beginning to dawn on us that Kenya as we knew it, is gone. Only last week, I advised that  it is impossible to prosecute and convict (without a shadow of doubt) most cases of Kenya's post election violence. Unless all Kenyans, including the international community, resolve, cooperate and pursue, to nab and prosecute both the big and the small fish, it is a case of nolle prosequi.

Whereas  it is not disputed in the eyes of all and specifically the findings of the Waki Commission that criminal  and inhumane deeds were executed by some during Kenya's post-election violence, Kenya must be disqualified and disbarred from prosecuting any case stemming from the post-election violence for reasons stipulated herewith:

a) the current president is involved and he is above the law of the land per the current constitution. To wit, any legal action against anyone else, regarding any case, directly or indirectly related to the post election violence is nolle prosequi until  the president leaves office or until the law is amended to allow the president to be indicted, whichever occurs first.

b) the current PM and some of the current law makers are involved, and to allow them any opportunity to set up a tribunal, or pass any resolution not to set up one is conflict of interest which renders any case of the post election violence nolle prosequi if tried under such an arrangement, even if the head of the tribunal is foreign, provided that the case is tried in Kenya.

c) other than the court martial of the 1982 coup suspects, Kenya as a nation has not been able to concluded or implement any recommendations of any commission or inquest. Any such body was set up to sweep problems under the rug or simply to cool off political and public tension stemming from political assassinations or any corruption scandals. Hence the onset of impunity.

d) because Kenya is a signatory of the international Criminal Court, and because of (a), (b) and (c) above, the ICC is the only body with legal jurisdiction set up to prosecute any alleged criminality or violation of humanity anywhere in the world particularly when laws of a sovereign nation interfere with the administration of justice.

Wherefore, as a sovereign nation, Kenya has every right to reject the recommendations of the Waki Commission just like any accused has the right to plead innocent. I advice and agree that Kenyan law makers should reject or disqualify themselves from setting up a tribunal in Kenya. However, since the  Waki Commission was set up under the appointing authority of mutually accepted international mediator, under the direct authorization and supervision of the United Nations, the Waki Commission acted within it's mandate to hand over its list of alleged perpetrators of violence to the official mediator, for prosecution at the ICC, in Hague.

Therefore, unlike business as usual, the perpetrators of violence will be indicted, regardless of whether they are a sitting president, PM, MP or officer of the law, and solely based on evidence, and without prejudice.They will be arrested wherever they are, whenever it is deemed appropriate by the International Prosecutor, tried, prosecuted and if found guilty, jailed. Remember, there is no death penalty punishment at the ICC.

For once, Kenyans will receive justice. Those found innocent or those left behind will continue to perform the functions of the nation. The clock is ticking, and the guilty need to be afraid, very afraid. Not because it is all hallows eve, but because they know they are guilty.

Joram Ragem, Esq.
Sacramento, Canada