NO TRIBUNAL DEAL YET ON EVE OF WAKI DEADLINE

DAILY NATION
By BERNARD NAMUNANE,
December 15 2008

Kibaki and Raila have 48 hours to sign pact on special court or the Hague takes over

President Kibaki and Prime Minister Raila Odinga have only 48 hours to sign a pact setting the stage for the formation of a special tribunal to try suspects linked to post-election violence.

And even as the clock ticked, a Cabinet committee is yet to prepare the agreement that the two principals are expected to have signed by Wednesday. The committee comprises the eight ministers who were part of the Kofi-Annan led Mediation Team.

Amend Constitution
According to the timetable drafted by the eight ministers, President Kibaki and PM Odinga should be signing the pact by Wednesday. After that, MPs will have until January 30, 2009, to amend the Constitution and entrench the pact. This will give the tribunal the legal mandate to operate outside the local courts.

The tribunal must be up and running by March 1, 2009.

Already, Parliament has laid the ground for the special tribunal by passing the International Crimes Bill that defined crimes against humanity.
The Bill defined international crimes to mean genocide, war crimes and crimes against humanity and offences against the administration of justice.

Those crimes include killing members of a group, causing seriously bodily harm, murder, extermination, enslavement, deportation or forcible transfer of a group of people, torture, rape and any other form of sexual violence, racial or ethnic persecution, or taking hostages.

Attorney-General Amos Wako has said the Rome Statute places the first responsibility of investigating and trying suspects of crimes against humanity on states that have ratified it.

However, there have been fears that a stalemate over a Bill seeking to dissolve the Electoral Commission of Kenya could jeopardise the Government’s commitment to meet Wednesday’s deadline for passing the law setting up a local tribunal.

Sources said the Cabinet committee had resolved to work overtime to prepare the agreement that President Kibaki and Prime Minister Raila Odinga are supposed to sign by Wednesday to secure the country’s right to investigate and try those suspected to be architects of the violence in which 1,133 people were killed and 350,000 others displaced from their homes.

If the politics surrounding the Constitution of Kenya (Amendment) Bill that seeks to disband ECK persist as they did last week, then the suspects will be turned over to the International Criminal Court. Sources in the House Business Committee said members had resolved to list the Bill on the Order Paper for Tuesday.

President Kibaki will, for the third time in two weeks, attend a Speaker’s Kamukunji scheduled at 12.30pm to whip up MPs’ support for the Bill when it comes to the floor of the House Tuesday.

It is understood that following the amendments to the Bill, which had been recommended by MPs during last week’s informal talks, the House Business Committee chaired by Vice-President Kalonzo Musyoka was confident that opposition to the proposed law had diminished. “The President will ensure during the Kamukunji that we have enough numbers to push through the Bill,” said a source.

On Monday, deputy PM Musalia Mudavadi and Nairobi Metropolitan Development minister Mutula Kilonzo cautioned that the haggling over the fate of the ECK was jeopardising the race to meet the Waki deadline.All efforts are being used to resolve matters arising from the Kriegler report. It is necessary that we beat the deadline because if we do not, it will trigger another process that we may not have control over,” said Mr Mudavadi in a telephone interview.

Mr Kilonzo said the deadlock over the ECK had delayed the Cabinet committee’s plans to implement the Waki report. “The impasse has definitely affected the roadmap that had been designed by the mediation team on the implementation of the Waki report. We had to put on hold those plans and focus on the Kriegler report,” he told the Nation on phone.

But the two members of the Kofi Annan mediation team gave a glimpse of hope that MPs may today solve the deadlock over the ECK before the House sits in the afternoon. “Given the commitment by the two principals, I am sure that we will meet the deadline,” said the deputy PM who is also the Local Government minister.

Mr Kilonzo expressed hope that Tuesday’s talks will find a solution to the sticking ECK issue that stalled last week despite intervention by President Kibaki and Mr Odinga. “We need to reach an agreement and deal with the matter of a special tribunal,” he said.

Former Kabete MP Paul Muite wondered why the two reports were being mixed and warned that the Government risks subjecting the suspects to The Hague. “If they do not do it on time, let the ICC take over as recommended in the Waki report,” he said.

Mediation team
Mr Kilonzo also warned that demands by MPs to disband the mediation team of eight Cabinet ministers were adding to the delays in setting up the special tribunal.

Last week, MPs argued that the team had outlived its mandate and should be disbanded.
“This matter needs to be sorted out,” Mr Kilonzo said.

Besides Mr Kilonzo and Mr Mudavadi, other members of the team are Cabinet ministers Martha Karua, Sam Ongeri, Moses Wetang’ula, James Orengo, William Ruto and Sally Kosgei.

COMMENTS:

Submitted by NaturalSceptic
Posted December 16, 2008 07:08 PM

AG Wako entered a lot of 'nolle prosequi's' for perpetrators this year such that police had to keep re-arresting. It is difficult to imagine victims approaching him for witness protection. His response to the Akiwumi report in the 90s is also public knowledge.

Submitted by mtimle
Posted December 16, 2008 04:59 PM

A tribunal held in Kenya will not go far irrespective of the moral standing and proffesionalism of the people presiding. Witnesses will dissapear, memories will fade. The usual shoddy investigations crowned with woefull prosecution. Call me a skeptic - The Hague is the only way!

Submitted by onyangofred2
Posted December 16, 2008 01:21 PM

THE WORDS "NOT HAVE CONTROL" IMPLIES THEY ARE ABOUT TO PLAY AROUND WITH THE WANANCHI. They know that if it's done in the country, then they have a way around the courts. They make the laws, they can always go around the law. Let the deadline elapse, and HAGUE take over.

Submitted by alkags
Posted December 16, 2008 01:08 PM

Surely, we are our own worst enemies, MR. EDITOR! What is the purpose of the photo that goes with the story? Is it to portray instability? You should realise that someone who does not read the story here but only looks through will assume that it is a yesterday photo? Come on, style up. We cannot market Kenya on the one hand as a stable destination for tourism and so on and on the other show images like that constantly?

Submitted by kariste72
Posted December 16, 2008 12:55 PM

I agree with barrackodrama here because i have grave misgivings about an internal tribunal and its capacity to effectively anf genuinely deliver justice. If past trends mean anything then it is clear that the political will to try anybody connected with the ruling elite class is lacking. So, i say, let them be tried at the Hague.

Submitted by kkebuchi
Posted December 16, 2008 11:01 AM

Local tribunal is a get out of jail free pass. We want Hague!

Submitted by Kathungu
Posted December 16, 2008 09:34 AM

I would put my money on the Hague solution and so it be..for the sake of justice and posterity

Submitted by Hillaryio
Posted December 16, 2008 07:49 AM

However much we want to sugarcoat the subject and divert the truth, only ICC can fairly preside over this issue. How do we expect a local tribunal to handle this issue without being influenced by the big names mentioned in the list? How can that happen when the International community is calling upon Kenya to hunt down Kabuga, who is believed to be hiding in the country with the help of some high-profile government officials. Besides local tribunals will only take this as a chance to spend millions and millions of the taxpayers money while politicizing the issue.

Submitted by justusmwamba
Posted December 16, 2008 07:48 AM

The ICC is supposed to only handle cases that partner countries have not indulged in. The Kenyan courts are already trying suspects in the kiambaa incident.Will this suspects be transfered to the Hague? S.A. Wako is a very competent counsel as far as matters of international law are concerned and therefore I believe he will advise The President accordingly.The thing to note here is that the President and the VP are committed to seeing that the matter is handled under our jurisdiction and execution we should support them.

Submitted by NaturalSceptic
Posted December 16, 2008 04:10 AM

YES! - I like the idea of the Hague. If MPs cannot implement Kreigler recommendations, settle IDPs, pay tax, feed Kenyans, study bills, hold peaceful party elections... how can they set up an independent tribunal?

Submitted by barrackodrama
Posted December 16, 2008 01:43 AM

Let those named in the tribunal go to the Hague.Then we will have a new generation of leaders who will learn from their predecessors what it means to respect the sanctity of life.All the PEV victims are human beings like you, me and the perpetrators of this violence; and they deserve justice. Justice is "wanyama wote wako sawa".