Get the planes ready for The Hague

Ndung'u Wainaina and Haron Ndubi

Jan 29, 2009

cc. Criticising the Kenyan parliament’s failure to push through legislation to create a special tribunal to bring those involved in the country’s post-election violence to justice, Ndung'u Wainaina and Haron Ndubi argue that parliamentary stalling simply reflects politicians covering their backs. Highlighting the political class’s efforts to escape punishment through defensive strategising, Wainaina and Ndubi reiterate that the tribunal was intended for justice for victims rather than allowing perpetrators to merely devise ways to forgive themselves.

Parliament's failure to rush through legislation creating the Special Tribunal to investigate, prosecute and punish perpetrators of the post-election violence is a direct result of the conspiracy by the political class not to do the right thing.

President Kibaki and Prime Minister Raila Odinga waited until the last day to sign the agreement to set up the Special Tribunal as recommended by the Commission of Inquiry into the Post Election Violence. Their delay had a knock-on effect on the parliamentary calendar, ending in the rush to pass the law and constitutional amendment yesterday -- a move that would have excluded the victims of the violence from the processes of forming the Special Tribunal.
Yet, the Special Tribunal proposed by the commission of inquiry, chaired by Justice Philip Waki, was meant to deliver justice for the victims. It was not meant to enable the planners and perpetrators of the violence to meet secretly in parliamentary caucuses to negotiate how to forgive themselves.

The rush in setting up the Special Tribunal concealed several shortcomings in the proposed law that would have hobbled its work.

The most glaring loopholes lay in the opportunities the Constitution gives people bent on escaping from justice to frustrate the work of the Special Tribunal. At present, the Constitution only recognises the Judiciary -- consisting of the magistrates' courts, the High Court and the Court of Appeal -- as having the right to try suspects and convict them. Parliament has not insulated the Special Tribunal from constitutional challenges by making it a part of the Judiciary. Further, the Special Tribunal needed to be independent of the existing justice system so that its decisions could not be appealed.
The Constitution also protects anyone from being charged with crimes that did not exist under Kenyan law at the time they were committed. In order to prevent suspects from arguing that the crimes they were accused of did not exist before the establishment of the Tribunal, Parliament needed to amend the Constitution to embrace crimes recognised in international law, and to which Kenya is a signatory.

Additionally, Parliament had done little to protect the Special Tribunal from the powers of the Attorney General to take over and terminate any case. Nor had it limited the President’s powers to grant clemency and pardons so that they do not apply to convictions by the Special Tribunal.

Apart from these loopholes in the Constitution, the law creating the Special Tribunal had five key deficiencies:

1) Its failure to require that any person being investigated steps aside from public office posed the danger of suspects interfering with evidence and investigations against them. The police, for example, were heavily indicted in the Waki Report. What would stop officers implicated from frustrating investigations if they continued in office?

2) There was no guarantee of protection for witnesses who would appear before the Special Tribunal. The law did not spell out how the Tribunal would protect the interests of witnesses. The current Witness Protection law concerns itself more with whistleblowers rather than witnesses.

3) There was no guarantee of oversight by Parliament, the international community or civil society to ensure that appointments to the Special Tribunal satisfy the criteria of competence and independence. The law did not provide specifically for the full participation of the victims either directly or through representation.

4) The questions of immunity and amnesty had not been addressed.

5) There was a potential clash between the Special Tribunal and the Truth, Justice and Reconciliation Commission -- which ideally share a common objective. They both seek to promote accountability and end impunity in order to build a new society based upon respect for human dignity, democracy and the rule of law. The Tribunal and the TJRC are expected to work in a spirit of co-operation and mutual respect, as equal partners. The potential for conflict needs to be diffused. For example, the power of the Truth, Justice, and Reconciliation Commission to grant amnesty can conflict with the Special Tribunal’s ability to prosecute without interference.

Legal experts have proposed that Tribunal and the TJRC should enter a written, binding and enforceable agreement for the regulation of their relationship within 90 days of both bodies being established. No provision has been made for this in the current law.

Kenya's political leadership, aware of its culpability in this matter, had been reluctant to embrace the establishment of a Special Tribunal and continued to erect roadblocks in its path.

Overall, the process leading up to the debacle surrounding the establishment of the Special Tribunal did not meet the established thresholds for public consultation. It was shrouded in secrecy and was not accountable in any way. Kenyans had no knowledge whatsoever of the content of the law that was being tabled in Parliament or the Constitutional Amendment Bill that made that law possible.

The effort to pass the amendments to the Constitution and the law within a day without giving Kenyans a chance to read and debate them smacked of an elaborate strategy by the political class to escape punishment.

With the deadline for establishing a local tribunal elapsing today, Dr Kofi Annan and the Panel of Eminent of African Personalities should note the circumstances that have brought Kenya to this pass and forward the list of suspects to the International Criminal Court -- without delay.

People who commit the kind of crimes witnessed in Kenya last year are increasingly ending up at the International Criminal Court if there is no reliable justice system in their country to prosecute them. Recent examples are the ongoing trial of Congo's Jean Pierre Bemba and Liberia's Charles Taylor. Kenyans should not be exempt.

Parliament's failure to rush through legislation creating the Special Tribunal to investigate, prosecute and punish perpetrators of the post-election violence is a direct result of the conspiracy by the political class not to do the right thing.

President Kibaki and Prime Minister Raila Odinga waited until the last day to sign the agreement to set up the Special Tribunal as recommended by the Commission of Inquiry into the Post Election Violence. Their delay had a knock-on effect on the parliamentary calendar, ending in the rush to pass the law and constitutional amendment yesterday -- a move that would have excluded the victims of the violence from the processes of forming the Special Tribunal.
Yet, the Special Tribunal proposed by the commission of inquiry, chaired by Justice Philip Waki, was meant to deliver justice for the victims. It was not meant to enable the planners and perpetrators of the violence to meet secretly in parliamentary caucuses to negotiate how to forgive themselves.
The rush in setting up the Special Tribunal concealed several shortcomings in the proposed law that would have hobbled its work.