Imanyara pushes for another attempt at Kenya tribunal

A new Bill that would see a special tribunal formed within the High Court to handle post-election violence cases is ready for tabling in Parliament.

Imenti Central MP Gitobu Imanyara has prepared the draft law that some analysts say is the most serious attempt advanced to set up a local mechanism to try the suspects.

The Bill seeks to use powers conferred on Parliament under Article 165(3) (e), which allows the House to give the High Court further jurisdiction.

It would set up a special tribunal with a structure similar to the International Criminal Court (ICC). There would be a trial chamber consisting of a presiding judge, two other judges and a prosecutor.

The tribunal would also have a registry, defence office, victims’ office and special magistrates to hear cases involving suspects that fall below the rung of those deemed to have “greatest responsibility” for the orgy of violence that swept through the country following the 2007 disputed elections.

Strong proponent

Mr Imanyara has been a strong proponent for the institution of a process for trials for the masterminds of the violence.

But the latest draft Bill has drawn criticism from some in civil society who say a local tribunal would be open to manipulation.

“We support efforts to set up a local tribunal but not as an alternative to the ICC process,” says Njonjo Mue, senior associate at the International Centre for Transitional Justice. “The ICC process has already taken off and that should not be halted.”

Mr Mue said a local tribunal would help to bridge an “impunity gap” by putting to trial suspects that were not included in chief prosecutor Luis Moreno-Ocampo’s list.

But he said the High Court was not the ideal forum for these trials because fundamental reforms of the Judiciary were yet to be carried out.

“Changing a few judges does not restore the confidence of Kenyans in the Judiciary,” he said. “We have to wait a long time and it would be premature to halt the ICC process in favour of a process that is handled by the High Court.”

The Imanyara Bill states in Section 4 (1) that “notwithstanding the provisions of this Act, and in accordance with the Rome Statute, the International Criminal Court established under the Rome Statute shall have jurisdiction to investigate, indict and prosecute persons bearing the greatest responsibility.”

But it stops short of saying that the cases already or ongoing at The Hague will not be affected by the Bill. The draft law is a revised version of another the Imenti Central MP presented in late 2009, which was rejected by legislators.

The new Bill drew input from civil society representatives and the ministry of Justice and its tabling in Parliament will provide a key test to the political class on their commitment to establishing a local mechanism to try the suspects.