New push for tribunal over Kenya violence

A fresh push for the establishment of a Special Tribunal to locally try suspected perpetrators of the 2007/2008 post-election violence is on.

Members of the Civil Society are set to initiate the process of re-introduction of the private member’s Bill to set up a Special Tribunal in the next few weeks.

The Bill, sponsored by Central Imenti MP Gitobu Imanyara, failed to win the support of a majority of MPs last December and was shelved. The Constitution of Kenya (Amendment) Bill 2009 was withdrawn in order to give room for consultations amongst various stakeholders.

Already, Mr Imanyara has indicated that he will be reintroducing the Bill, for a third time.

The MP claimed over the weekend that some people in the current government were lobbying officials from 'other tyrannical regimes in Africa’ to weaken the Rome Statute that establishes the International Criminal Court at a forum scheduled to take place in Kampala next month.

Although the office of the chief prosecutor of the ICC Luis Moreno-Ocampo has given 20 names of suspects to the Pre-Trial Chambers’ judges, the International Centre for Policy and Conflict argues that a local tribunal will be necessary to try suspects who will escape the ICC process.

“If no national judicial mechanism being established a grave impunity gap would thrive; with majority of the suspects who might not be prosecuted by the ICC (likely scenario) walking scot-free despite having been identified and connected to the post-election violence,” the group states.

“We must not still forget there are many others who are not in the Ocampo’s list,” it notes.

The group says establishment of a Special Tribunal for Kenya was unavoidable under the circumstances. It must, however, be backed by a very effective and independent Witness Protection mechanism.

“It might be difficult for the office of the Prosecutor to gather sufficient evidence against all these suspects that would meet the criteria and threshold of admissibility to the Court to enable the prosecution of all them,” said the executive director Mr Ndung’u Wainaina on Monday.

He argued that if the Prosecutor is allowed to conduct official investigations into Kenyan situation, and after collecting evidence finds out that it is insufficient to prosecute all the suspects and the crimes within the jurisdiction of the Court, he will be forced to issue sealed indictments of the suspects and the evidence collected and hand them over to the government of Kenya to try them locally.

“This makes it inevitable to enact internationally acceptable Special Tribunal for Kenya to try not just those suspects that Prosecutor won’t prosecute at the ICC but also the majority of other dangerous suspects who committed serious crimes and are still looming large,” he stated.

The proposed Witness Bill would enact a state controlled protection mechanism, which would jeopardy independence.

The list of 20 names was presented to the Pre-Trial Chambers judges on March 3.

Meanwhile, the civil society group has written to the International Criminal Court expressing support to the Court but more importantly giving details of their concerns with non-existence of any genuine national judicial proceedings and its implications.