Monday, December 8, 2008





December 7 2008

A special tribunal to try prominent Kenyans suspected to have been the architects of the bloody post-election violence that engulfed Kenya in January and February this year will be in place by March 1, next year, a Government working document reveals.

A copy of the report obtained by the Nation reveals the Government’s resolve to avoid the International Criminal Court at the Hague by setting up a local tribunal to investigate and prosecute those who are in Justice Waki’s secret list.

According to the document, the tribunal will be given special status that will enable it to operate outside the jurisdiction of Kenyan law courts.

The Implementation Matrix of the Waki Report, also dashes hopes of those who harboured dreams of influencing the local tribunal by indicating that although it would be set up on Kenyan soil, the majority of its key staff would be foreigners.

The road map to the tribunal sets out the activities that will be undertaken to meet the December 17 deadline that is set in the Waki report, those who will be responsible and the time lines of each activity.

A budgetary estimate is allocated to each activity. The Waki commission has a provision of taking the case to The Hague if the Government fails to show the willingness to set up a local tribunal by December 17.

The matrix was prepared by a technical team appointed to assist the Cabinet committee on the Waki report. The team met last week and is scheduled to conclude its work tomorrow and present its report to the Cabinet on Thursday for approval.

The committee was formed by Cabinet in an effort to implement the Waki report. The report has named six Cabinet ministers, five MPs and other prominent persons who should be investigated for their roles in the post-election violence.

The secret list of suspects was handed over to former UN secretar-general Kofi Annan, who was the chief mediator for safekeeping.

Mr Annan has said he will present the sealed envelope to the local tribunal once it has been set up. If not, Mr Annan will hand it over to The Hague.

President Mwai Kibaki, Prime Minister Raila Odinga, Justice and Constitutional Affairs minister Martha Karua, attorney-general Amos Wako, Parliament, the Panel of Eminent Persons and the Kenya Law Reform Commission will play key roles in setting up of the tribunal and related activities.

According to the implementation matrix, President Kibaki will start constituting the Special Tribunal for Kenya from March 1, 2009, in consultation with Mr Odinga.

The working document reveals that the tribunal will be made up of two chambers—one for trial and the the other for appeals.

In setting up the tribunal, the President will in consultation with the PM, appoint the chairpersons of the Trial and Appeals chambers and then follow it up with two judges for both chambers.

The two judges will be foreigners because the working documents makes it clear that they be picked from a list that would have been identified by the Panel of Eminent Personalities whose chairman is Mr Annan.

The Waki Report had proposed that two of the three judges be foreigners.

In what could be taken as a measure to check the perceived interference from those named in Waki’s secret list, even the prosecutor and the deputy prosecutor will be foreigners whose names will be provided by the Annan team.

Similarly, names for those who will be appointed as registrar of the tribunal and chief defence counsel will be provided by the Panel of Eminent Personalities.
The establishment of the tribunal will have been preceded by the enactment of a relevant statute whose deadline has been scheduled to be January 30, 2009.

The statute will “provide for the jurisdiction and operations of the tribunal including crimes which the tribunal will deal with; composition of the tribunal’s Trial and Appeal chambers; procedures; and the rights of the suspected persons at both the investigative level and during the prosecution period, and the victims.

The statute will also make provisions for the appointment and the roles of the prosecution office, the registrar’s office and the defence office in addition to the strict code that will be followed by tribunal junior staff.

This step will be implemented by the Justice ministry, Parliament, Mr Wako and the Kenya Law Reform Commission.

The ground for the enactment of the statute would have been prepared by the signing of the agreement on the establishment of the Special Tribunal for Kenya.

The working documents has set December 16 as the date by which President Kibaki and Mr Odinga should have signed the agreement.

After this, Parliament will be required to review the Constitution to entrench the Special Tribunal to give it adequate legal teeth to try those who are suspected to have been the architects, financiers and executors of the post-election violence in which more than 1,133 Kenyans were killed and at least 350,000 displaced.

The amendment will also give the tribunal special jurisdiction of international level to deal with the issue of post-election violence.

The document states as its aim: “ (To) amend the Constitution to entrench the tribunal and to oust the jurisdiction of local courts in respect of concurrent matters.”

And given that the special tribunal will deal with crimes against humanity that are defined under the Rome Statute that establishes the International Criminal Court, MPs will also be called upon to pass the International Crimes Bill, 2008 by January 30, 2009.

The Bill, the document states, should “be enacted before Parliament goes on recess.” The chairman of the Parliamentary committee on Administration of Justice and Legal Affairs, Mr Mohamed Abdikadir, confirmed that the Bill which lapsed during the last Parliament was before his team.

“The Bill is before Legal Affairs committee and we are working on it.”

Still Parliament will also be expected to enact the Freedom of Information Bill, 2007 alongside passing new laws that will establish and operationalise the Police Service Commission.

Parliament has indicated its intention to push the implementation of the Waki report by forming two committees— the summit and a 20 member MP team.

Special Tribunal

The two committees were established two weeks ago during a conference of MPs on reconciliation at the Safari Park Hotel.

Last week, Saboti MP Eugene Wamalwa presented a motion that will give the two committees mandate to play a role in the implementation of the Waki report.

If the working document is anything to go by, Parliament which is scheduled to go on recess by December 18, will have a very busy schedule in the next two weeks.This is so because when it takes a break in December, the House normally reconvenes in March. However, the President reserves the right to recall Parliament to pass legislation of national importance.

Apart from laying the ground for the establishment of the Special Tribunal, Parliament is also expected to pass the Constitution of Kenya (Amendment) Bill that will disband the Electoral Commission of Kenya and and set up an Interim Independent Commission of Kenya to replace it.