Local tribunal or The Hague?

All was well when parliamentarians held a kamukunji (informal meeting) on Wednesday to discuss the Special Tribunal Bill on post-election violence.

After spirited debate, and with time ticking towards the January 30 deadline imposed by the Waki Report, passage of the Bill the next day was expected to be a formality.

That did not happen, as Imenti Central MP Gitobu Imanyara unexpectedly threw a spanner in the works. His stated motive sounded curious; presumably, in his view, the Bill was being rushed without MPs and others being allowed enough time to scrutinise it.

A similar rush, he complained, had occurred with the Bill disbanding the Electoral Commission of Kenya without considering the implications of what would happen if, for instance, the presidency suddenly fell vacant and the country was forced to go into a General Election.

Technicality

The technicality Mr Imanyara seized upon was furnished by Standing Order 99. It allows any MP, supported by two others, to block the fast-tracking of a Bill, a matter that had become necessary if the Waki deadline was to be met. Justice minister Martha Karua had moved the motion to shorten the Bill’s publication time from the normal 14 days to one.

The implications of Mr Imanyara’s intervention, which he objects being called “technical,’’ could be huge. The Waki Report had decreed January 30 as the deadline for Parliament to pass the law establishing the Special Tribunal. Absent such a law.

the prosecutions would shift automatically to the International Criminal Court at The Hague.

Mr Imanyara was emphatic that his intervention had nothing to do, in as far as he was concerned, with the tiff between Parliament and the Executive over the re-appointment to the Cabinet of Mr Amos Kimunya. His real wish is to see the post-election violence caseload pushed straight to the ICC.

Coalition government

Mr Imanyara is not alone in this wish. Some lawyers and MPs doubt there is genuine political will from either side of the coalition government to punish the masterminds of the post-election violence and to confront the culture of impunity once and for all.

There are also fears that there would be political interference in a local tribunal to avoid trying, convicting and punishing the perpetrators.

A pointer to what lay ahead appeared when the Cabinet decided against the clause in the Waki Report requiring that ministers and other public officials whose names are in the Waki Envelope or who otherwise come under investigation step aside. The removal of that clause was upheld at Wednesday’s kamukunji. In the latest version, the suspects will only be required to step aside upon indictment by the prosecutor.

The manner in which the constitutional amendment Bill creating the Special Tribunal has been drafted has also raised disquiet among many lawyer-MPs who discern ready made loopholes for suspects to exploit via time-wasting constitutional reference suits.

Mr Imamyara’s other legalistic objections pertain to witness protection and the financial independence, or lack thereof, of the Special Tribunal. On witness protection, he felt the guarantees in the Bill are not secure enough, considering witnesses will be required to give evidence against suspects who could face life sentences.

“These are witnesses who will need protection for life,” argued the MP.

He was also of the view that the operations of the ribunal should be funded directly from the Consolidated Fund.

“The body’s financial independence is important. Relying on the generosity of the ministry of Justice when the incumbent will be busy campaigning for the presidency is not right,” said the MP.

Ms Karua was clearly taken by surprise by Mr Imanyara’s action but, for once, she did not seem to take it on him personally. From her standpoint, the Waki timelines are not cast in stone. For that reason, there is room in her view for Mr Kofi Annan to be flexible since the delay in enacting the Tribunal was not the fault of the government.

According to Government Chief Whip George Thuo, “the incentive for the ICC to act is if it senses that the government is subverting the process, which is not the case.”

On Tuesday, Ms Karua intends to renew her motion to fast track the Tribunal legislation, while at the same time hoping there won’t be another unexpected zinger. Mr Imanyara, however, is adamant he will not relent on his objections.

As for the minister, she can opt not to shorten the life of the Bill and simply wait for the 14 days to elapse, hoping that way Mr Kofi Annan will be persuaded to wait rather than activate the ICC machinery.

The crimes the Special Tribunal will be investigating fall between December 3, 2007 and February 28, 2008. It is not quite clear what special reason determined the cut-off date to be set on December 3, 2007.

Nonetheless, it is a matter of interest that the scope of investigation goes well back before the actual voting and announcement of results on December 30, 2007, which suggests there is recognition the genesis of the problem was not with the announcement of the election results.

That alone puts into some difficulty the politicians who argue that the violence was “spontaneous”.

There had been some pressure from some political faction to change the cut-off date from December 3, 2007 to December 30. Human rights groups would have preferred the cut-off date of investigations to start far earlier than December 3, 2007.

But none other than Mr Annan had urged that the prosecution of election-related offences be expedited while the root causes be dealt with separately.

The Tribunal borrows from the ICC statute insofar as it can rope in for prosecution people deemed to have been culpable by virtue of the public position or knowledge or influence, but who are not necessarily named in the initial investigations.