Hague: Kibaki calls crisis Cabinet talks

The Cabinet will meet on Tuesday to strike a deal on what kind of court will try suspects accused of crimes against humanity during the last election.

Like many other issues, debate on whether a special tribunal or a special division of the High court should hear the cases has divided the government along party lines.

It is an early indicator of the difficulties involved in punishing those who instigated, organised and funded the chaos. Many top individuals in government have a passionate, and sometimes personal, interest in the issue, making it difficult to arrive at a consensus.

The prospect of having senior people arrested and carted off to the International Criminal Court (ICC) at The Hague has energised the government and the Cabinet meeting, normally held on Thursday, has been brought forward.

On Monday, ICC chief prosecutor Luis Moreno-Ocampo is also expected to open the sealed list of suspects and evaluate the evidence handed over to him by chief mediator Kofi Annan last week. Kenya has promised to have a suitable court up and running by the end of September.

If it is unable to form one acceptable to the public and to the ICC, it is expected to refer the cases to the ICC within 12 months.

Representatives of the Party of National Unity and Orange Democratic Movement will meet today to agree on the final content of a draft Bill.

PNU is said to favour a special division of the High Court. ODM says it fears such a division may fall short of international standards or might be manipulated.

The Bill is one of the promises the government made to the ICC in its bid to stop Mr Moreno-Ocampo from stepping in to investigate and prosecute the masterminds of the fighting in early 2008 in which 1,133 people were killed.

Haggling over

On Sunday, Kenya National Commission of Human Rights (KNCHR) vice-chairman Hassan Omar Hassan said he had been informed by the ICC that a government Bill, tentatively to be known as the Independent Tribunal for Kenya, was on the way. “The Bill is at a certain level of drafting,” Mr Omar said.

“What they are haggling over is the wording, the need for broad consultations, its independence and credibility to the international community and acceptability among MPs and Kenyans,” he said.

A meeting was held on Friday at Justice and Constitutional Affairs minister Mutula Kilonzo’s office to discuss the draft Bill.

Lands minister James Orengo (ODM) and coalition advisors Kivutha Kibwana (PNU) and Miguna Miguna (ODM) attended the meeting. Energy minister Kiraitu Murungi is said to have “popped in” to see the direction the talks were taking.

Representatives of political parties were also called in to give their views.

Immediately before the government delegation of Mr Kilonzo, Mr Orengo and Attorney General Amos Wako left for Geneva to meet Mr Annan and Mr Moreno-Ocampo at The Hague, Mr Kilonzo wrote to Head of Civil Service Francis Muthaura about a special division of the High Court as the possible organ to prosecute the suspects.

The letter was copied to Mr Orengo and the AG. On Sunday, Mr Orengo disowned the special division idea.

“A division of the High Court cannot meet the international standards in the Rome Statute. And, given that the High Court would wield the original jurisdiction, the prosecutions will hit the jams that are a mark of our law courts,” he said.

Mr Kilonzo, however, has no such fears. “The special division of the High Court will meet the standards. There is no doubt about that,” he said. Such a division will have a majority of foreign experts such as judges, prosecutors and investigators.

The compromise will likely be an independent tribunal which will not be much different from the Special Tribunal rejected by MPs in March.

The proposed tribunal will be independent of the other courts, will have a majority of foreign judges, while the prosecutor and the investigator will also be foreign.

Once established, the tribunal will have no link with the government, including in its funding.

Monday’s meeting between PNU and ODM will decide the fate of the clause that requires those who were in office during the killings to be punished for crimes committed by their juniors.

The parties are also expected to agree on when suspects ought to be taken into custody. The draft agreed on will be taken to the Cabinet tomorrow and will only be taken to Parliament once it has the support of the majority.

Many MPs are hostile to the idea of local trials and want the suspects taken to The Hague. They argue that a local tribunal could be manipulated by powerful individuals or used to settle political or personal scores.

In a letter to the KNCHR seen by the Nation, ICC director in-charge of Jurisdiction, Complementarity and Cooperation Division said her organisation was still analysing a number of factors, including whether the alleged crimes are within the jurisdiction of the court, if they are of sufficient gravity and whether Kenyan authorities were conducting genuine investigations or prosecuting the crimes.

“My office will evaluate all the crimes in an objective manner regardless of the political or ethnic character of the alleged perpetrator,” Ms Beatrice Le Fraper du Hellen said.