Wednesday, July 15, 2009



By David Ohito and Martin Mutua
The Standard
Nairobi, Kenya

The special session of Cabinet deadlocked over whether those suspected to hold higher responsibility for post-election violence should be tried at The Hague or by a local tribunal.

Sources privy to the meeting said ministers hit a stalemate over a move to create a special tribunal while some favoured a special division of the High Court created under the powers of Chief Justice Evan Gicheru.

It was a hard day for President Kibaki and Prime Minister Raila Odinga, who are pushing for a local tribunal with the bar set on international standards of prosecution, as the going got tougher even before the battles moves to hostile Parliament.

Consequently, and after a frenzied debate patterned along the traditional Party of National Unity and Orange Democratic Movement fault line, it was agreed the meeting be adjourned to Monday.

Kibaki and Raila convened it last week, after Chief Mediator Kofi Annan wrong-footed the querulous Grand Coalition by handing over a sealed envelope with names of suspects and chests of evidence against them, to The Hague’s Chief Prosecutor Luis Moreno Ocampo.

A copy of a document tabled by Justice Minister Mutula Kilonzo on behalf of Kenya’s delegation to Annan and Ocampo, drawn this week, pitched for a special local tribunal on the basis that:

• It is in line with Justice Waki’s recommendations.

• It would inject public confidence and enhance competence of public institutions.

• It will deal with all perpetrators, not just those holding higher responsibility.

• Gives Kenyans a sense of ownership and accountability.

• Has the support of the international community.

• ICC prosecutions ‘would damage Kenya’s credibility internationally…"

The key features of the proposed Special Tribunal, which will be up for discussion again on Monday, alongside proposed changes to the constitution, are:

• Trial and Appeal chamber staffed with special prosecutors.

• Specially recruited magistrates except those stipulated by international law.

• It will have power to investigate and prosecute those linked to genocide, crimes against humanity, and other crimes stipulated by the Laws of Kenya.

• The trial chamber to be chaired by a Kenyan judge and to include two foreign judges.

• It would recruit its own staff.

Cache of evidence

Sources reported the meeting degenerated into a tug-of-war of sorts between the forces pulling on either side, as the world awaited for Chief of Prosecutor of the International Criminal Court to open up the envelope and cache of evidence given Dr Annan by Justice Philip Waki. At least 40 ministers were in the meeting, which started at 10am and dragged on until after 3pm.

The Cabinet withheld approvals sought in the document signed by Mutula, Attorney General Amos Wako and Lands Minister James Orengo, for:

• Establishment of special tribunal

• Publication and presentation to Parliament of proposed constitutional changes that would pave way for the tribunal.

• Directive to all ministers that they support and defend this position.

• Directive to Justice Minister to mobilise support for Special Tribunal.

• Order to Treasury to finance the tribunal.

• Directive to ministries and Government institutions to support the tribunal once established.

The meeting comes against a back drop of Ocampo’s sentiment: "The Kenya Government has committed to provide all information and should the proposed special davison of the High Court fail, they would refer the case to the ICC to take over."

Ocampo said he had boxes of information and supporting documents for cases, which should be investigated in connection with crimes committed after the 2007 General Election.

Yesterday, multiple diplomatic sources revealed the investigations and evidence adduced against the perpetrators were air freighted in 15 cartoons to Geneva last Tuesday – a day before Annan announced handing over the sealed envelope to Ocampo.

The Standard was also informed a senior diplomat from the West claimed: "Those people, who thought they are protected will have their walls breaking down soon."

In what exposed the bloated Cabinet as lacking a shared vision and leadership, they failed to agree on the process as time ticked away in favour of The Hague option.

There were those pressing for a special tribunal fashioned along the Rome Statue, which meets international standards. Majority of the PNU-allied ministers are said to favour a special division of the High Court.

The ministers pulled in different directions over a contentious clause in the Special Tribunal draft Bill, which removed immunity for the President and would subject him to the courts if accused. At the moment the Constitution puts the President above the law, prompting a protest from a section of the ministers.

But some of the ministers argued the Judiciary was well endowed with personnel who would competently handle the cases through creation of a special division of the High Court.

Two ministers strongly opposed the trial at The Hague, stating it would make Kenya to be ranked alongside failed States for failing to institute a special tribunal locally.

A minister who was in the delegation that signed an agreement with Ocampo argued the Government had signed an agreement that the special tribunal must borrow from the international principles of ICC. According to the Rome Statutes, there is no presidential clemency and nobody is above the law.

Foreign judges

Ministers also differed over the issue of seconding foreign judges to the courts that would try the suspects.

A statement issued by Director of Presidential Press Service Isaiya Kabira, however, said the Cabinet considered two crucial Bills: "The Constitution Amendment Bill that will make provisions to enhance the capacity of the tribunal to conduct investigations and prosecutions in an effective manner."

The statement similarly talked of a drat Bill seeking to establish a special tribunal to investigate and prosecute those bearing the greatest responsibility for post-election violence. "Both Bills were discussed and a special session of Cabinet will be held next week to discuss the way forward after members have had time to study the two proposals," added Mr Kabira.

A source said ODM team pushed for the court to try offences related to flawed elections.