The issue of whether or not to free persons held for their roles in the violence that followed the disputed presidential election has presented a fresh stage for increasingly bitter confrontation within the grand coalition Government.

Yet it is notable that none of the Cabinet ministers and MPs exchanging words in public over the issue is bothering to make references to the relevant provisions of the accord signed by President Mwai Kibaki and Prime Minister Raila Odinga, the ongoing Agenda 4 talks meant to find solutions to outstanding issues and the amnesty clauses in the Truth, Justice and Reconciliation Commission Bill published earlier this month and awaiting debate in Parliament.

From onset

From the onset of the talks, initially mediated by former UN secretary-general Kofi Annan, blanket amnesty for those involved in the violence was never on the agenda.

Indeed, an underlying principle, which was also fronted by the UN, Britain, the US, the EU and others, was that any settlement must not set a precedent for leaving gross human rights violations unpunished - whether committed by the State organs, political movements or individuals.

Stated explicitly

An agenda for the Serena Hotel talks signed in February by Justice and Constitutional Affairs minister Martha Karua for PNU and deputy Prime Minister Musalia Mudavadi for ODM, stated explicitly that the mediated settlement aimed partly at "ensuring the impartial, effective and expeditious investigation of gross and systematic violations of human rights and that those found guilty are brought to justice".

Matters to do with restoring security and dealing with crimes following the post-election crisis were party dealt with under Agenda 1 and Agenda 2 of the National Dialogue process.

Agenda 2 called for investigations and prosecution of all crimes recorded, ranging from murder, arson, looting and forced evictions to abuses by government agents such as police brutality and use of excessive force.

It also called for the establishment of a commission of inquiry into the post-election violence, but clearly the focus was on punishment of those involved so as to set a deterrence, rather than lack of any action, which would just allow for impunity.

On March 4, all the eight representatives to the talks, four each from PNU and ODM, signed an agreement on the establishment of a commission of inquiry into the violence.

The parties agreed that the commission would, among other things, "recommend measures with regard to bringing to justice those persons responsible for criminal acts".

At forefront

Among those who signed for the ODM was Mr William Ruto, now Agriculture minister, who has been at the forefront in pushing for the freeing of those arrested over clashes, particularly in the Rift Valley.

However, the agreement did not expressly rule out amnesty. Other than prosecution, it allowed the Commission of Inquiry to look into other legal, political and administrative measures, and also left room for methods that would promote national reconciliation.

The commission was also mandated to forward any of its recommendations to the Truth, Justice and Reconciliation Commission envisaged by the Bill awaiting passage.

Part III of the Bill does indeed provide for amnesty mechanisms and procedures, but nowhere is it envisaged that there would be blanket amnesty.

The Bill is also specific that amnesty cannot be recommended or granted with regard to offences that constitute crimes against humanity or genocide as described by international human rights law.

Protestations

In general, it is clear that there are provisions for amnesty despite the Justice ministers' protestations, but then not in the blanket fashion pursued by Mr Ruto and other Rift Valley ODM leaders, and since taken up by the Prime Minister.

One legitimate grouse they have, however, is that the Government's efforts at netting the perpetrators seem to be focused almost exclusively on those who financed and prosecuted the initial attacks in the wake of the disputed presidential election results, while ignoring the vicious revenge attacks in Nairobi and adjacent parts of central Kenya and also the Naivasha and Nakuru areas of Rift Valley.

While calling for investigations and prosecutions, the various agreements outlined above are also clear that such action should be impartial.

If the Government is targeting only one side, then it is in breach of the agreement, and is also acting in a way that could inflame passions in Rift Valley and make impossible reconciliation and the ongoing efforts at resettling the displaced.