KENYAN CABINET DEADLOCKED ON CLAUSES IN SPECIAL TRIBUNAL LEGISLATION

THE STANDARD
NAIROBI
By David Ohito

The drafting of laws for the Special Tribunal to try post-election violence suspects ran into fresh trouble as ministers differed on critical clauses.

The Cabinet yesterday referred the fine-tuning process of the law to the Parliamentary Legal Committee after ministers differed on clauses international experts want included or expunged from the draft law.

At the top of differences is the inclusion of a pardon and reconciliation. The Parliamentary committee may now decide the fate of the clause.

Another critical matter was the entrenchment of the Special Tribunal in the Constitution, a move that would make it independent of the High Court.

Sources privy to the Cabinet discussions said some ministers opposed anchoring of the tribunal in the Constitution, a move that would guarantee the independence of the tribunal without constitutional challenge.

Pool of perpetrators

A statement sent to the newsrooms by the Presidential Press Services said: "The Cabinet agreed that further consultations be held with the Parliamentary Legal Committee before a final Bill is prepared for presentation to Parliament."

Lands Minister James Orengo, speaking at workshop for Ugenya Constituency Development Fund, assured Kenyans that the Cabinet was keen on the establishment of the Special Tribunal.

"The Cabinet will approve the draft statute today (yesterday)," said Orengo, who is a member of the Serena team of negotiators.

Others are deputy Prime Minister Musalia Mudavadi, ministers Prof Sam Ongeri, Dr Sally Kosgei, Mr Moses Wetangula, Mr William Ruto, Mr Mutula Kilonzo and Ms Martha Karua.

The team plans to call a Kamukunji on Tuesday to seek MPs’ support.

The Human Rights Watch (HRW) made proposals, which it sent to the Serena team for considerations. It wanted the tribunal to try a limited pool of perpetrators.

Cabinet agreed that further consultations be held with the Parliamentary Legal Committee before a Bill is prepared for presentation to Parliament.

Price of failure

The Waki Report recommended that if either an agreement for the establishment of the Special Tribunal is not signed, or the Statute for the Special Tribunal fails to be enacted, or the Special Tribunal fails to commence functioning as contemplated above, or having commenced operating its purposes are subverted, a list with names of those suspected to bear the greatest responsibility for crimes falling within the jurisdiction of the proposed Special Tribunal shall be forwarded to the Special Prosecutor of the International Criminal Court.

The Special Prosecutor shall be requested to analyse the seriousness of the information with a view to proceeding with investigation and prosecution of such suspects.

The differences emerged as sources said some politicians were opposed to the tribunal warning that powerful politicians would interfere with it, hence they want the International Criminal Court to try the suspects.

Ministers differed on crimes to be tried under the Special Tribunal. They also disagreed on the appointment of the judges to the tribunal and those to be recommended by the Committee of eminent persons.

Qualified to serve

The Waki Report recommended that The Panel of Eminent African Personalities shall identify the other two members who will be appointed by the President, in consultation with the Prime Minister, from among persons qualified to serve as judge of a superior court of record in any part of the Commonwealth.