Framework for the Special Tribunal in Kenya

The ‘Waki’ Commission of Inquiry into Post-Election Violence was clear that an essential component of the process for the return to a peaceful and democratic Kenya, where the rule of law is respected, is the trial of persons with most responsibility for the violence. It seems that the list of persons prepared by the Waki Commission for further investigation includes some who are in politically powerful positions, even in the cabinet. Many Kenyans are outraged that these persons still hold important posts and may continue to do so in the future. The ethnic violence that followed the 2007 elections traumatised the whole nation, threatened its unity and led to senses of deep grievance. If those responsible are not brought to justice, the impunity which has characterised Kenya’s political and public life will continue unabated, and the sense of betrayal and of the illegitimacy of the government will become acute.

A compelling reason for an international court, or at least a hybrid court (with significant participation of international judges and prosecutors) for the trials is the weaknesses in the national legal and judicial system. The Kenyan system has the appearance of independence, competence, and effectiveness (at least when compared to Cambodia). But the Waki report points to the lack of political will to prosecute persons in high authority for serious offences, whether illegal appropriations of land, embezzlement of astounding sums of money, incitement to ethnic hatred and violence and killings. The initiation and termination of prosecutions are politically driven, so that when private groups have tried to bring highly placed suspects before the courts, the attorney general has terminated the trials. The judiciary has the reputation of extreme corruption, and subservience to the government. The Commission on the Goldenberg scandal describes how the courts have been used to launder stolen public funds and to whitewash perpetrators of theft. The Waki Commission says, ‘nothing short of comprehensive constitutional reforms will restore the desired confidence and trust in the judiciary’. [p. 463]

Added to the political manipulation of the legal and judicial process are deficiencies in the system, as the attorney general himself admitted to the Waki Commission. Particularly weak is investigative capacity; the commission cites many cases of prolonged delays in investigations. Capacity for the conduct of prosecutions is also weak. The commission concluded, ‘In view of the lack of visible prosecution against perpetrators of politically related violence, the perception has pervaded for sometime now that the Attorney General cannot effectively or at all deal with such perpetrators and this, in our view, has promoted the sense of impunity and emboldened those who peddle their trade of violence during election periods, to continue doing so’. [p. 455]

The commission has provided a number of carefully considered principles for the structure and jurisdiction of the Special Tribunal. If the legislation does not fully implement them, then the commission’s conditions will not have been met and the list of suspects could be handed over to the Special Prosecutor of the International Criminal Court.

This article discusses the recommendations of the commission. Unfortunately, the bill for the tribunal has still not been published, so near the commission deadline for its enactment. The law is not a matter for horse-trading between politicians but of the greatest public interest, and full public discussion of the bill before parliament passes it is essential.

RECOMMENDATIONS FOR THE DESIGN OF THE SPECIAL TRIBUNAL

A SELF-CONTAINED TRIBUNAL

Given the past record of the prosecution and judiciary, the commission recommends that the Special Tribunal should be detached from the other courts and the attorney general. They will have no jurisdiction in relation to the proceedings of the tribunal, which will have its own judges, prosecutor and investigators. Appeals from the tribunal’s Trial Chamber would go to the Appeal Chamber (also part of the tribunal).

INTERNATIONALISATION

A majority of judges would be foreigners, drawn from the Commonwealth, and appointed on the nomination of the Panel of Eminent African Personalities by the President in consultation with the Prime Minister. The prosecutor would be appointed on the nomination of the panel in the same way, and presumably be an outsider qualified to be a judge in a Commonwealth country. Reflecting its hybrid nature, the tribunal will have two Kenyan judges, one presiding over the Trial Chamber and the other the Appeal Chamber. They will be appointed by the president in consultation with the prime minister, both acting on the advice of the chief justice (which means they must accept that advice). The hybrid nature is also reflected in the jurisdiction of the tribunal, covering both Kenyan penal law and international crimes.

INDEPENDENCE

The tribunal will have authority to recruit and control its own staff, which will consist of Kenyan and international persons. Investigations will be conducted under the direction of the tribunal’s prosecutor. The head of investigations and at least three other members of the team will be non-Kenyans ‘so as to provide an independent approach to the investigation function of the Tribunal’. Similarly, having judges and the prosecutor from outside and detached from local politics will enhance independence. The tribunal will take custody of all investigative material and witness statements and testimony collected and recorded by the commission. The commission seeks to ensure non-interference with the tribunal by requiring that holders of public office (including civil servants) who are charged by the tribunal shall be suspended from duty.

CONSTITUTIONAL STATUS

The commission wants the tribunal to be ‘insulated against objections on constitutionality’ by anchoring it in the constitution. It is no doubt concerned that the typical Kenyan ploy, under which culprits in conjunction with lawyers, judges, and the government, conspire to derail important cases or processes, should not be available to subvert the tribunal. The provisions to be entrenched must be carefully drafted, not merely to give the tribunal constitutional status, but to ensure its independence, internationalisation, detachment from the ordinary court and legal processes (specifying, for example, that the attorney general’s powers of investigation and the initiation and termination of prosecutions do not apply in relation to the tribunal). There may also be questions over the retrospective application of the international crimes legislation (dealt with later) although some offences there were also effectively prohibited in Kenya (like torture).

GOOD FAITH AND INTEGRITY

The Special Tribunal is a hybrid, but with a clear twist. In Cambodia if the government were to subvert the purposes of the Extraordinary Chambers in the Courts of Cambodia (ECCC), the UN would withdraw. By contrast, if the local process was subverted, the cases would be ‘internationalised’ by reference to the International Criminal Court (ICC). It remains to be seen whether, given Kenya’s political culture, this threat will be sufficient to ensure an honest process at home.

SUPPORTING ENVIRONMENT

The commission recommends three measures to create a supportive environment for the tribunal. To lay the legal foundation for its jurisdiction over crimes against humanity, it wants the speedy enactment of the International Crimes Bill, which was gazetted in April 2008 and appears to have languished since. Secondly, it wants the Freedom of Information Act enacted ‘forthwith’ so that both state and non-state actors can have full access to information leading to the arrest and prosecution of persons responsible for gross violations of the law. Thirdly, it wants the operationalisation of the 2006 Witness Protection Act to ensure protection for informers and witnesses.

These principles provide an effective framework for the tribunal. As is well known, the commission was not allowed time to produce more comprehensive proposals. I discuss below how some of its proposals could have been strengthened and suggest a few others to ensure that the spirit underlying the commission’s recommendations is better reflected.

IMPROVING ON WAKI?

THE APPOINTMENT AND TENURE OF JUDGES

The ultimate decision on the appointment of the Kenyan judges seems to be left to the chief justice. This would be unfortunate, for in practice the initial and the ultimate decision would be the president’s, leaving little discretion for the prime minister or chief justice. To overcome the problem of a chief justice who is widely perceived to be allied to the president, and a Judicial Service Commission which is heavily under the influence of its official members, the rule could be revised to require the chief justice to send the president names of three persons for each chamber, in consultation with other members of the Court of Appeal. Preferably the Kenyan judges should be drawn from senior practitioners, rather than serving judges.

In principle, the role of the president, prime minister and the chief justice should be minimised as each might, in different ways, be deemed implicated in, and share in the responsibility for, the chaos that followed the elections.

The tenure of judges should be specified for the duration of the tribunal. Provision should be made for removal for misconduct, with the determination to be made by a tribunal constituted of Commonwealth judges appointed by the panel. There should also be immunities and other privileges of judges (and other tribunal staff).

FUNDING OF THE TRIBUNAL

Such tribunals tend to be expensive, and the source of funds also affects the independence of the tribunal. No doubt the usual donors and lenders will assist, and it is to be hoped that funds will be sufficient and timely. In particular, the salaries and expenses of foreign judges and staff should be provided from such sources.

LEGAL REPRESENTATION

The commission envisages a defence component of the tribunal but is short on detail. The tribunal should be allowed funds to set up a defence office or provide payment to lawyers chosen by the accused. Unfortunately, no scheme of official legal aid exists, despite a long standing constitutional requirement. Also, in keeping with the internationalisation of the tribunal, foreign lawyers briefed by the accused should be permitted to represent them.

TRIBUNAL’S JURISDICTION

Jurisdiction is restricted to ‘serious crimes, particularly crimes against humanity, related to the 2007 election violence’. It is necessary to specify the jurisdiction clearly (at least as elaboration of ‘serious crimes’, such as murder, rape and other sexual violations, torture, forced disappearances, massive destruction of property – most of these are to be found in Kenya’s penal laws). Crimes comprehended by the concept of ‘crimes against humanity’ are well understood now (and the International Crimes Bill adopts the definition in the statute of the ICC). But that bill is not yet law, and even when it is, its application could be challenged on the grounds of retrospectivity. It is therefore all the more important to clarify that Kenyas’s penal laws covering charges of the ‘serious crimes’ mentioned above are made applicable.

Jurisdiction in respect of persons (‘persons bearing the greatest responsibility for serious crimes’) also needs to be specified. The tribunal will start with a list of potential accused and the evidence against them collected by the commission, but the tribunal should be free to investigate others. But only the most reprehensible persons should, additionally, be charged, in order to bring the trial to closure within a reasonable time. Kenya cannot afford the luxury of the trials going on and on. Among the suspects are leading politicians and the early determination of responsibility and remedial action are essential for peace, stability and justice. The law on the tribunal should specify that the ordinary process of investigation and prosecution should apply after the tribunal process ends.

EFFECTIVE INTERNATIONALISATION

In Cambodia and other instances of hybrid tribunals, the role of the international community, particularly the UN, has been crucial. The ‘international’ status of the tribunal comes from its association with the Panel of Eminent African Personalities headed by Kofi Annan. The commission urges that its recommendations should be implemented under the auspices of the panel, and, in addition, gives it specific tasks (as in the appointment of judges and prosecutors). Oversight by the panel should be expressly stated in the law. The panel in turn should be free to use such institutions as it deems appropriate to discharge its responsibilities.

MONITORING AND AUDITS

Monitoring by local and international NGOs and UN audits have played an important role in the accountability of the Cambodian tribunal. This is also important here, and should be provided in the law.

FINAL OBSERVATIONS

It is imperative that the government and parliament get a proper and credible system in place, for a great deal depends on it. Quite apart from dispelling the reputation we have established abroad for violence, impunity and unprincipled politicians, we have also to convince Kenyans of the ability and willingness of political parties to end impunity and to punish those who place the security of the people and the integrity of the country at risk. And we have a chance to learn through the participation of foreign judges, prosecutors and investigators, how a proper criminal justice works. Over the years, as we have so shamelessly politicised our legal system that not only have people lost all confidence in it, but the government and the judiciary have forgotten the professional competence, skills, and integrity necessary for a just and effective legal system.

* Yash Ghai is a professor of constitutional law. He is the head of the Constitution Advisory Support Unit of the United Nations Development Programme in Nepal and a Special Representative of the UN secretary general in Cambodia on human rights.
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