Local court for poll chaos architects

A special division of the High Court may be set up to try architects of the post-election violence, it has emerged.

It is the government’s most favoured option given the stiff opposition by MPs across the political divide to the local tribunal, a confidential letter to the Head of Civil Service says.

Justice minister Mutula Kilonzo on Monday said he had written to the Cabinet on the proposal, which was given the green light by the International Criminal Court (ICC) prosecutor, Mr Luis Moreno-Ocampo.

Its hostility

The letter, a copy of which was seen by the Nation, bases its arguments on the fact that Parliament has already displayed its hostility to the local tribunal. The special division, with international input, is therefore being proposed as the solution.

“It is clear that taking the Bills back to Parliament will not yield any better results,” says the letter written last week and copied to Lands minister James Orengo and Attorney-General Amos Wako.

This means key politicians and business people suspected to have been architects of the poll chaos could be tried at home instead of the International Criminal Court (ICC) at The Hague that had been proposed by the Waki Commission.

“The Hague is not an option here. We have a new window of proposing alternative judicial mechanisms that will deal with the suspects here in the country,” said Mr Kilonzo on Monday.

But the proposal is likely to trigger a disagreement between PNU and ODM, with Prime Minister’s adviser on coalition affairs Miguna Miguna saying a special division of the High Court would not meet the standards set in the Rome Statute.

“The so-called ‘division of the High Court’ would not meet those standards. As such the process will not be judicially, constitutionally, legally, administratively and financially independent of the existing Kenyan political, judicial and administrative institutional shenanigans,” he said.

Mr Miguna was part of the government delegation to The Hague. He said, according to the agreement, Kenya must report to the ICC by the end of September 2009 on “information on modalities for conducting national investigations and prosecutions of those responsible for the 2007 violence through a special tribunal or other judicial mechanism adopted by the Kenyan Parliament with clear benchmarks over the next 12 months”.

In the letter, the product of a meeting which the Justice minister held with President Kibaki and Prime Minister Raila Odinga, Mr Kilonzo gives a sneak preview into the kind of special division of the High Court that could be modelled along the Sierra Leone Special Court or the deal struck between the Ugandan Government and the Lord’s Resistance Army rebels.

Amendment

The special division, which is to be set up through an amendment of the Constitution by Parliament to avoid acts of nolle prosequi and clemency requirements, will have a mix of both local and foreign judges, external prosecutor and investigator, in addition to a similar division in the Court of Appeal.

“It will meet the standards of the Rome Statute,” said Mr Kilonzo when contacted.

“The Cabinet should make a clear statement on the special division to rally public and international support that we are determined to end impunity,” says the letter.

More than 1,000 people were left dead and 350,000 others displaced from their homes during the post-election violence after the release of disputed presidential election results in 2007.