CABINET REJECTS DRAFT LAWS ON LOCAL TRIBUNAL

DAILY NATION
By BERNARD NAMUNANE &
LUCAS BARASA

Tuesday, July 14 2009

Ministers fail to agree on trying sponsors of poll violence as debate shelved until Monday. The Cabinet on Tuesday rejected two draft Bills on a local tribunal to try election violence suspects. After four hours of debate without agreement, the meeting was called off and another one scheduled for Monday.

Ministers who spoke to the Nation on condition of anonymity because Cabinet deliberations are secret, said there were passionate arguments at the meeting, with nearly every minister present asking for a chance to give his or her opinion on whether the masterminds of the slaughter at the last election should be carted off to The Hague or be prosecuted at home by the local tribunal.

The Cabinet meeting had been called to discuss the Bills after chief mediator Kofi Annan, a former UN secretary-general, handed the list of suspects to the International Criminal Court.

The government has promised the ICC that it will establish a suitable tribunal to try the suspects by September.

The Presidential Press Services, in a statement, said two draft Bills, the Constitution of Kenya Amendment Bill and the Special Tribunal for Kenya Bill, were discussed and a decision on whether to push on with them postponed to Monday to give the ministers time to study them.

“Both Bills were discussed and a special session of Cabinet will be held next week to discuss the way forward after Cabinet members have had time to study the two proposed Bills,” it said.

Justice minister Mutula Kilonzo, his Lands counterpart James Orengo and Attorney General Amos Wako, led the discussions.

Mr Kilonzo took the meeting through the Bills, emphasising the need to make the tribunal independent, fully insulated from legal tactics that could interfere with its work and the need to meet international standards.

Mr Orengo argued that there was need to put in place a tribunal that would bring to an end decades of impunity and serve as a lesson to those who want to circumvent the electoral process. He also said it would also and help to streamline the Judiciary.

Ministers who spoke to the Nation after the meeting said three strong positions emerged from the meeting: One group insisted it will not be possible to try suspects at home without starting a fresh wave of killings in the country.

This group, which was said to have included ministers William Ruto and Henry Kosgey, said the cases should be handled by the International Criminal Court.

Another group, made up mainly of ministers from PNU, supported the establishment of a local tribunal but questioned certain clauses such as those which sought to waive presidential immunity from prosecution, strip the AG of his powers to terminate cases and the Judiciary of its mandate to issue injunctions and the move judges who may be appointed to serve on the tribunal.

Ministers said those who took this line of argument included Kiraitu Murungi (Energy), Moses Wetang’ula (Foreign), John Michuki (Energy) and George Saitoti (Internal Security), among others.

The proposed tribunal Bill says no official is immune from prosecution. Under the Constitution, the President cannot be prosecuted while in office.

The draft Bill also strips the President of his powers to pardon any person who has been found guilty by the tribunal.

The AG will also not be allowed to use his powers of nolle prosequi - to discontinue a case- against any person facing charges before the tribunal. Similarly, judges of the High Court and magistrates are barred from issuing any injunctions against the proceedings before the tribunal.

Suspects will only be required to resign from the office when they are charged by the tribunal, in essence allowing ministers to retain their positions while under investigations by the tribunal.

Still, it sought to beat the technical hitch associated with the International Crimes Act which came into force in January by insulating the tribunal from sections in our law books that make it unconstitutional to prosecute a person for crimes that were committed before a law came into force.

Some ODM ministers, the sources said, were opposed to the proposal of a majority of the judges being local on grounds that they could easily be manipulated by powerful politicians.

The sources said Mr Kilonzo and Mr Orengo were asked to review the Bill to ensure that the privileges of the offices of the President, the AG and the Chief Justice were restored.

The third group opposed both the local tribunal and ICC options, arguing that the government adopts a judicial mechanism to that will reconcile and unite the country. The duty of Mr Annan, they argued, was to bring together a people divided by the disputed elections and not to punish.

Ministers said their colleagues who took this line included William ole Ntimama and Najib Balala.

President Kibaki and Mr Odinga who have emphasised on the importance of forming the local tribunal, were said to have postponed the meeting after it became clear that most ministers were not supportive of the proposed tribunal.

Even if the cabinet endorses the tribunal Bill, there are fears that MPs who return to the House on Tuesday are likely to shoot it down, for the second time.

Kenya has until the end of September to pass a law establishing the tribunal to avoid carting the suspects to The Hague.

Some politicians have in the past linked the violence to the outcome of the presidential elections whose results ODM disputed. They have said that if those who led the violence should be tried, so too should those who they accuse of stealing the election.

About 1,133 people were killed during the violence. Another 650,000 were displaced from their homes, according to Mr Justice Waki.

COMMENTS:

Submitted by williamnjoroge
Posted July 15, 2009 06:31 PM

While the leaders do take blame for what happened - the average Kenyan in the streets is not innocent. Many required little or no incitement to attack their neighbors. Many had even done so in 1992 and 1997 when a different regime was in power. As usual Kenyans want to take no responsibility - blame the leaders and let distant Hague handle the mess we created.

Submitted by WANJIKU_
Posted July 15, 2009 06:27 PM

and if all some of this are crooks why are they leading us?,no wonder we are most corrupt in every essence,even obama fear to near us,please waist your time on writting wills for the old wazess.this round you will taste justice.

Submitted by umeme
Posted July 15, 2009 05:39 PM

The Hague is the only option. With all the clauses that need to be added for a local tribunal to be effective will prove to be a miraculous task to pass and without these clauses even with foreign judges the tribunal would be useless. The Attorney General should be made to explain why he cannot prosecute rapist and arsonist with existing laws.

Submitted by vgogero
Posted July 15, 2009 05:13 PM

The first point to establish is whether the so called perpetrators of the PEV have a case to answer did the Waki commission establish this beyond any reasonable shadow of doubt and were they served adequate adverse notices .If the answer is No then the Waki commssion did not complete its work

Submitted by KU1978
Posted July 15, 2009 05:13 PM

Predicting fresh violence should be a crime in itself because thats intimidation.As corrupt as kenya is a local tribunal will just put us in the dumps, why not have a local tribunal with independent Judges from the ICC to try the minor players. The the big guys can face their crimes in Hague....I hope this situation serves as a lesson to our leaders who constantly abuse their power at the expense of their citizens...

Submitted by KU1978
Posted July 15, 2009 05:13 PM

Predicting fresh violence should be a crime in itself because thats intimidation.As corrupt as kenya is a local tribunal will just put us in the dumps, why not have a local tribunal with independent Judges from the ICC to try the minor players. The the big guys can face their crimes in Hague....I hope this situation serves as a lesson to our leaders who constantly abuse their power at the expense of their citizens...

Submitted by mzeemoja
Posted July 15, 2009 04:19 PM

Cabinet ministers have come and gone. How can millions of Kenyans be held hostage by this special crop? nd who are they anyway? Kenya is ripe for a overt revolution.

Submitted by Ngocho
Posted July 15, 2009 03:21 PM

How do we expect the accussed to go to The Hague if we do not trust ourselves to put them on trial here? They need to be arrested and shipped off there. If we do not have the political will to get a local tribunal working, we cannot then have the political will to arrest the suspects. The Hague is not an option. We only have 3 options; set up a workable local tribunal, have a truth and reconciliation commission or forget the whole issue until the next bout of violence.

Submitted by KenyanObama
Posted July 15, 2009 02:25 PM

my fellow citizens, let us sit back and enjoy the unfolding drama without worrying. our leaders are famed for BICKERING and what they dont realise is like it or not, ICC is beckoning. By our leaders actions, we will know who amongh them is heading to the hague to answer for murder charges.

Submitted by okello01
Posted July 15, 2009 01:44 PM

Those calling themselves ministers please excuse kenyans,we don't need privileges of the offices of the president ,AG and chief justice.These privileges are the main hindrance to justice in Kenya since they don't serve the interest of the common man but the interest of those who think they own us.

Submitted by njaami
Posted July 15, 2009 11:49 AM

This game of musical chairs potrays our cabinet as unschooled and also betrays their greed. They are after personal interests and moreso 2012. But Kenyans are watching and the HAGUE is the place to prove our innocenece. Why fear if you are not guilty, why carry anothers burden. Give Kenyans a break for once.

Submitted by jmarka04
Posted July 15, 2009 11:11 AM

to trust the current cabinet(read kenyan leaders) with punishing the perpetrators of the PEV is self defeating, reason-they are the suspects. only a person with a deprived brain can expect a thug to offer fair judgement to himself. if the waki list contains at least 5 cabinet ministers, how do you expect them to deliver judgment?

Submitted by mulosh
Posted July 15, 2009 10:58 AM

hehehe: Now Rutto and Kosgey say there will be more killings if people are tried locally! RAO and MK should call the bluff and teach any foolish person who tries to kill another that this country will not that rubbish anymore. But of course PM and president won't simply because: this is Kenya, and nothing really matters anymore.

Submitted by MUINGAH
Posted July 15, 2009 10:21 AM

Ruto and kosgey, what do you mean by 'it will not be possible to try suspects locally without starting a fresh wave of killings in the country'? is there something they know and they are shy of coming out open? anyhow, whether Hague or a local tribunal, impunity is coming to and end and the chicken of the 2007 PEV are coming home to roost!

Submitted by Obwakemwatugul
Posted July 15, 2009 09:16 AM

The Church, the Media, etc let us seek truth and reconcilliation and build a united country. Remember Mandela did the same to South Africa After years of Apatheid. Vengeance breeds vengeance but forginess heals. Otherwise, ICC should take up the case so that all our politicians from top to bottom are held responsible. The Waki Report clearly implicates politicians, the media, the church etc as perpetrators of the violence through entrenching tribalisms. The truth must be told for our country to be free. They can have an impact in healing a nation.

Submitted by Menjeru
Posted July 15, 2009 08:34 AM

For now, we will take our criminals to the hague and even set up local tribunals. This is the work of our local CID department and the judiciary, so why on earth do we continue paying our hard earned taxes to dysfunctional units that are not serving us?

Submitted by mworiamwenda
Posted July 15, 2009 08:19 AM

let the Ministers and the principles stop wasting time and resources, because justice for Kenyans can be found at the ICC. It is fresh in our memories that the victims of church burning in Eldoret were buried after the court failed to convict the alleged murderers. The real masterminds of assassins of such personalities as Tomboya, JM, and Ouko have never been brought to book.

Submitted by musyokaj
Posted July 15, 2009 07:29 AM

Your Excellencies the President of the Republic of Kenya and the Prime Minister, Kenyans do not need this cabinet. Dissolve it and form another one of 16 Ministers. Then pass the bills and take them to Parliament. Let those MPs who can not support it be counted. They will be putting their heads on the chopping board

Submitted by betterkenya
Posted July 15, 2009 06:14 AM

We have a big problem, who on this world would expect any sound minded decision from these proceddings. Leopard have eaten a goat and then the same leopard is being the judge in determining if it should be killed for eating the goat. what do you expect from that type of a judgement. wastage of our time and resources.

Submitted by renny_1
Posted July 15, 2009 05:47 AM

Yaani, how can criminals be deciding what rules will be used to judge them? Isn't this crazy? This is what is wrong with our country. I think these are reasonable safeguards against executive interference with the tribunal. Please keep the language and start dealing a blow to impunity. Please.

Submitted by muthinja1
Posted July 15, 2009 04:08 AM

The roposal was right, but for local judges. Only local Jugge who can sit in that tribunal is Just. Waki! * Strip AG permanently from entering Nole Proseques, they are probably the most abused priviliges in Kenya's fight for justice. * If the President is guilty he is, as the MAN, the institution is NOT; charge him accordingly * CJ is a presidential appointee, therefore biased towards the boss. Kilonzo has something good here, maybe.

Submitted by manu-i-am
Posted July 15, 2009 03:20 AM

How does Ruto know that a local tribunal would spark fresh violence? who told him that? it is obvious that he faces serious jail time in the event a local tribunal is formed and so he is using threats to prevent this from happening. "We" are not afraid of you and your barbaric thugs mr Ruto. you do not own the rift and you will soon learn that.

Submitted by urlike
Posted July 15, 2009 02:33 AM

Trusting Kenyans court to deal with the murderers is like trusting a rapist to your child.All these people are criminals and that is why so much debate on who and where the trial takes place.You dont choose comfort locations for murderes,you take them to the gallows.Why is the government draging it feet so much.Do not forget the blood of the innocent will haunt you forever.Kenyans judicial system is too corrupt toeven defend a child from a rapist.When did thieves(criminals) decide where and who to try them.

Submitted by jobeka1
Posted July 15, 2009 02:29 AM

Are ruto and kosgey telling us what will happen in the rift valley if they are charged by the local tribunal? And what thinking is this ole ntimama and balala are talking bout?! This my folks are people who have a lot to loss!Your time is UP!!!

Submitted by jobeka1
Posted July 15, 2009 02:29 AM

Are ruto and kosgey telling us what will happen in the rift valley if they are charged by the local tribunal? And what thinking is this ole ntimama and balala are talking bout?! This my folks are people who have a lot to loss!Your time is UP!!!

Submitted by Masindepeter
Posted July 15, 2009 02:08 AM

Something is missing here, did the cabined reject the bills as the headline says or they failed to agree on the details? Relying on unnamed cabinet sources could also just be misleading?

Submitted by woz
Posted July 15, 2009 01:47 AM

Arrest the whole lot. And her as well. No end of trouble, all of them.

Submitted by mwakib
Posted July 15, 2009 12:51 AM

Mr President and Mr Prime Minister this issue will make or break Kenya. If you can not agree dissolve the coalition. Those who think that the country will be held hostage by the threat of new violence from the suspects are mistaken. Un like before there is no election dispute or other red herrings to confuse Kenyans or the international community. Set up the tribunal now and let the chips fall.

Submitted by InSidious
Posted July 15, 2009 12:32 AM

Certain clauses are unacceptable. Anyone name must resign fropm office immediate. If the President is enjoindered, he must resign of face vote of no confidence and plunge the country further into chaos. No exceptions to justice.

Submitted by Jellyfish
Posted July 15, 2009 12:26 AM

Fine if they dont agree let the Hague take over. I think we should also have a local tribunal to try those who killed and raped innocent people. Those in the Waki list should face the Hague. About the elections that has already been solved. The IIECK has already been formed and the boundaries commission is also setup. Now we need justice then later we can reconcile through a truth and reconciliation commission.

Submitted by MansaMussa
Posted July 15, 2009 12:06 AM

Listen to the cacophony of these power-drunk criminals as they seek harmony on how to avoid responsibility for their muderous power-grabbing schemes. Justice can only be served at the Hague. But is it worth the lives of more innocent Kenyans? Undoubtedly more lives will be lost and millions of shillings in property destroyed before any of these piranhas is fish-tanked at Slobodan Mlosovich's former crib. Last weekend Ruto was declared a Sabaot elder and given a spear and shield...need I say more? MansaMussa. USA.

Submitted by galagala
Posted July 15, 2009 12:05 AM

It is not hard to see who the guilty (are afraid) are and how they intend to influence the process. For the tribunal to have some teeth, I say keep all the clauses in. Otherwise, we will be voting for impunity to continue. The time for tough action is now!

Submitted by mza
Posted July 14, 2009 11:51 PM

Now that it's clear they can't agree, Ocampo should move with speed!

Submitted by mbuvijmk
Posted July 14, 2009 11:22 PM

I like the way the loopholes are sealed here! This is the way to go fellow Kenyans. A criminal is a criminal even if he/she is occupaying the highest office. Kilonzo and Orengo, good work!

Submitted by Master
Posted July 14, 2009 11:14 PM

Pitty Kenyans. Where were the Wetangulas when Moi disbanded the Ouko Commission when it was just about to cross-examine one of the most important witnesses - the late Oyugi? Was that not an abuse of a judicial process? If we have to form a tribunal locally, all those provisions "abolishing" interference must be upheld. If we allow the AG to enter a nolle prosequi, for instance, the smiling Wako will play the mischief he unleashed when Saitoti was cornered by private prosecution over his role in G'berg. Kenyans have been taken for a ride for too long!