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.

The Bill borrows heavily from the text and spirit of the National Accord, which Prime Minister Raila Odinga and President Kibaki signed to end the post-election mayhem.

It states: “Recalling the agreement on the principles of partnership of the coalition government (and) the agreement for the establishment of a Commission of Inquiry on Post-Election Violence, affirming that such serious crimes should not go unpunished and aware that these transgressions cannot be properly addressed by our judicial institutions due to procedural and other hindrances; determined to bring to justice those responsible for these crimes and to put an end to impunity… the House establishes a special tribunal)”.

Among the highlights of the Bill is a requirement that serving state officers indicted under the process should vacate office.

Those named by Mr Moreno-Ocampo as key suspects are Head of Public Service Francis Muthaura, Finance minister Uhuru Kenyatta and Postmaster-General Hussein Ali who all remain in office.

The other suspects are former ministers Henry Kosgey and William Ruto and journalist Joshua arap Sang. Under the terms of the Bill, these six will be tried by the trial chamber.

Other suspects, including those suspected to have committed crimes such as murder, rape and forceful evictions, will be tried by the special magistrates courts.

Kenya has drawn criticism from human rights campaigners and Western allies for the fact that no single perpetrator of the violence which left over 1,000 people dead and led to the displacement of hundreds of thousands has been brought to justice for the crimes.

That failure has been blamed on lack of political will, inefficiency in the Attorney-General’s office and the slow pace of reforms in the Judiciary.

The Bill attempts to shield the process from interference by the courts by stipulating that “the Tribunal shall have primacy over the courts at any stage of the proceedings of a court for a crime that may be prosecuted under this Act.”

Seize assets

It also provides for the confiscation of assets of suspects who use them to further the crimes envisioned under the Act and stipulates that no official shall be immune from prosecution.

The lack of a clause exempting the president from prosecution was cited by some PNU MPs during debate on another local tribunal Bill tabled by Justice minister Mutula Kilonzo for their opposition to the draft law.

Kenya National Commission on Human Rights commissioner Hassan Omar said the effort to try a greater number of suspects was welcome but, like Mr Mue, he opposed any effort to stop ICC trials.

“I think the draft is a good start but it needs to be revised so that it is better anchored in law to insulate it from political horse trading. If the intention is for it to replace the ICC, however, it should not be supported.”

Mr Mue says senior politicians in the coalition had showed themselves to be more interested in shielding the Ocampo Six than in seeking justice, pointing to repeated rejection of the local tribunal option in the past.

When the Bill is presented in Parliament, it will provide key players in coalition partners ODM and PNU with a major test.

ODM leader Raila Odinga was an early advocate for local trials of the suspects and it will be interesting to see whether MPs allied to him will back the Imanyara Bill.

PNU-allied MPs have also lately been pressing the case for a local judicial mechanism to try the suspects, saying that handing over suspects to The Hague would effectively be seen as an admission that Kenya is a failed state.

But MPs allied to Uhuru Kenyatta, seen as the key figure in PNU, and William Ruto, who is technically in ODM but is viewed as being in a loose alliance with Mr Kenyatta, opposed past efforts to establish a local tribunal.

Their voting patterns when the debate begins will be closely watched to establish whether the government is keen on establishing a local tribunal.

Under the legal principle of complementarity, the Rome Statute allows the ICC to take action against an individual only when it can be shown that the state of which the individual is a national is unable or unwilling to pursue justice.

The Commission of Inquiry into Post-Election Violence headed by Justice Philip Waki required the government to establish a local tribunal involving some foreign judges and a prosecutor from outside the country to try the suspects.

Chief mediator

When it emerged that key administration officials were not keen on this option, chief mediator Kofi Annan handed the list of suspects prepared by the Waki team to Mr Moreno-Ocampo.

The ICC pre-trial chamber of judges is expected to rule next month on whether the prosecutor has amassed sufficient evidence to bring a case to trial at The Hague and whether the Kenya case falls within the jurisdiction of the court.

Vice-President Kalonzo Musyoka has spent the last two months lobbying foreign heads of state to support a request by Kenya that the case at the ICC be deferred for a year.

The African Union endorsed that bid at a summit in Addis Ababa last week but the United States has expressed its opposition.

US Deputy Secretary of State James Steinberg said on Thursday that his government would not support the deferrals, especially if they were meant to protect the suspects.

The opposition of the US, which has veto power in the UN Security Council, means that the only way Kenya can avoid trials at The Hague would be if the government can convince the ICC that it has established a credible local tribunal to handle the cases.