Handling of violence suspects a tricky affair
ON Monday, Justice minister Martha Karua said at least 130 suspects had been arrested over some 9,000 crimes committed during the post-election chaos.
Coming amid calls for amnesty, the figures also indicated that some 340 suspects were still being sought and that investigations were continuing. The majority of the cases are pending in courts in Rift Valley and Nairobi.
The question that has divided the Cabinet is whether to declare amnesty or prosecute the suspects. ODM politicians, including the Prime Minister, Mr Raila Odinga, and Agriculture minister William Ruto have called for amnesty.
The PNU/ODM-K side, including Vice-President Kalonzo Musyoka, Deputy Prime Minister Uhuru Kenyatta, Justice minister Martha Karua, and her Internal Security counterpart, Prof George Saitoti, are against it.
Some leaders opposing amnesty say only those accused of ‘petty crimes’ may be pardoned, but those accused of more serious offences – rape, physical harm and destruction of property – must face the law.
While Kenya battles with amnesty and reconciliation, I’m reminded of a story that touches on forgiveness at the individual level and amnesty on a larger scale.
On December 22, 2003, a shocking murder was reported in the Republic of Palau in Guam, an island in the western Pacific.
Here is how it was reported: “A triple murder; husband, wife and their 11-year-old son were bludgeoned to death in their home Monday night. The fourth family member, a 10-year-old girl, was abducted from the home, raped, strangled, and left for dead on the side of a road.”
The victims were members of a missionary family: Pastor Ruimar DePaiva, 42, his wife Margareth DePaiva, 37, and their 11-year-old son, Larrison. The suspect, Justin Hirosi, 43, later “pleaded not guilty by reason of mental disease or defect”.
The Palau murders were so gut wrenching that that the small island organised a state funeral for the DePaivas. It was at the funeral that Ruth DePaiva, the mother of the slain missionary, asked for Hirosi’s mother.
"Here we are, two mothers," wire services reported her as saying. "I am sure the mother of Justin has prayed so many times for her son, and I am sure her heart hurts terribly. I just want to take Justin's mother and let her know we will be praying for her ... and for Justin."
Then, the Adventist News Network reported, she forgave.
While we ponder over the implications, Kenyans can, at an individual level, follow the example of Ruth DePaiva.
(Lest I be misunderstood, although Ruth DePaiva forgave, the suspect remained in custody regardless, since the offence was also against the state.)
Palau President Tommy Remengesau, who attended the funeral, said Ruth’s ability to forgive allowed the entire nation to begin a healing process over a crime that had never occurred in the country before.
Kenyans who have heard that story may find it unbelievable. After witnessing grotesque killings in January and February, with over 1,000 killed, more than 350,000 displaced, and anger welling up in the hearts of those affected, can anyone really forgive?
Forgiveness is unthinkable for victims of violence. That is partly why calls for amnesty ring such discordant bells and beg many questions.
How will the victims feel? Will the alleged perpetrators not do it again? Will amnesty not embolden criminals and encourage impunity? Will pardoning criminals restore normal relations? Is there benefit in forgiving an unrepentant criminal? How about the ones who got away without being arrested?
Some feel it may be fine to pardon petty offenders – placard wavers and stone throwers, for example – while ensuring that killers and rapists face the law.
While that sounds reasonable, it would be a case of selective justice if only those in custody are prosecuted, knowing some of those who would have faced similar or worse charges remain free. That kind of justice would be dubious at best.
The circumstances and the places where the arrests took place may make it appear as if mainly perceived ODM supporters were targeted. The police must show they were not biased in arresting the 130 suspects, and the judicial system must show it is impartial in dispensing justice.
To date, nobody has given satisfactory answers to accusations that criminal gangs were given uniforms, armed and set loose on demonstrators. Who knows for sure if anybody was arrested for killing 35 people in a church in Kiambaa, Eldoret? And who knows if anybody was arrested for killing 13 women and children in Naivasha? Only the courts can answer those questions.
But even if all the suspects got arrested, there is the lingering question of the ‘big man’. This does not only mean the masterminds being brought to book, but also the root causes of the violence being addressed. What purpose would it serve to prosecute perpetrators of post-election chaos when the political causes of violence remain unaddressed?
Even when applied to the tittle, the law must serve a practical purpose, giving benefit to the community at large. That is why calls for amnesty cannot be dismissed offhand. When considered, it can act as a catalyst for national reconciliation.
Presumably, sticklers want to enforce the law, assuage the pain of victims and teach the important lesson that crime cannot go unpunished. On the other hand, those supporting amnesty are wary that selective prosecution of suspects may trigger lawlessness, fan the flames of hatred and create disharmony. They condemn crime, but look beyond the acts of crime themselves.
Had Kenyans kept confidence in the judiciary, few would have paid attention to political noise. It is a catch-22 of sorts. If some are jailed over post-election crimes, unless care is taken to ensure all stones are turned everywhere, social harmony will have been sacrificed at the altar of selective justice.
In such a case, those being resettled in the midst of anger and disenchantment will be left at the mercy of angry neighbours. The hapless returnees would remain vulnerable, quite aware that they are the ‘big stick’ for the predictable sequel to January 2008. That is why some displaced people will simply not return home.
At the same time, if blanket amnesty is declared, the sticklers will rightfully claim the law has been trampled underfoot. Impunity abounds and there is no knowing what other crimes will be committed. The perpetrators know they can hide behind ‘extraordinary circumstances’ and political godfathers to claim pardon.
Yet amnesty and forgiveness cannot be ruled out. This is not mere pontificating; there are practical benefits at the individual and national levels.
One more thing to consider, prosecuting the suspects of post-election violence may send the wrong signals to potential witnesses at Justice Johann Kriegler’s truth, justice and reconciliation commission.
While its success is debateable, the South African Truth and Reconciliation Commission is the closest example Kenyans can cite. It focused on apartheid crimes over 34 years and heard testimonies of 21,000 victims. It is instructive that it received over 7,000 applications for amnesty. It granted only 125.