Why Kibaki may have to recall Parliament

The resolve by President Kibaki and Prime Minister Raila Odinga to have suspected architects of the post-election violence tried locally is set to motivate an early recall of Parliament to pass laws setting up the Special Tribunal for Kenya.

Reports suggest that President Kibaki is likely to recall the House on January 20, 2009.

This week, the two leaders signed a pact to set up the tribunal. Had they failed to sign the agreement by last Wednesday, the suspects would have been left exposed for a possible trip to the International Criminal Court at The Hague in Netherlands.

Chief Mediator Kofi Annan, while acknowledging the commitment by the President and the PM, has however dashed any hopes of extension of the deadline set by the Justice Waki Commission in a bid to ensure those behind the violence that left 1, 133 people dead and at least 350,000 displaced are brought to book.

“I urge Kenya’s leaders to redouble their efforts to implement the CIPEV (Commission of Inquiry into Post Election Violence) recommendations and to respect the suggested timeline of action,” he said in a statement triggered by our inquiries on possibilities of an extension of the Waki Commission deadline.

This means that as you read this article, the Government has exactly 44 days to ensure all laws that the Special Tribunal for Kenya would require to operate are enacted.

But even as Mr Annan appeared reluctant to change his position, Government reports revealed that there were plans to ask the chief mediator to hold on to the list of suspects a little longer as they worked to negotiate a labyrinth of steps before the tribunal starts its operations.

Apart from the commitment by the two principals, Parliament also passed a key Bill to the work of the special tribunal- the International Crimes Bill- before taking the Christmas break.

The Bill, which domesticates the Rome Statute that established the ICC, defines the crimes against humanity which the suspects of post election violence will face.

Crimes

It defines international crimes to mean genocide, war crimes and crimes against humanity and to offences against the administration of justice of the International Criminal Court (ICC) - the crime of aggression.

According to the Rome Statue, those crimes include killing members of a group, causing seriously bodily harm, murder, extermination, enslavement, deportation or forcible transfer of a group of people, torture, rape and any other form of sexual violence, racial or ethnic persecution, or taking hostages.

Other crimes are deemed to be against administration of justice. They include bribery of officials, obstructing of justice, perjury, intimidation and fabrication of evidence.

Signing of the pact and passage of the International Crimes Bill are part of a long list of activities that the Government has to undertake between now and March 1, when the Special Tribunal is expected to start work.

It is significant to state here that President Kibaki and PM Odinga endured three sessions of the Speaker’s kamukunji to rally MPs to pass the Constitution of Kenya (Amendment) Bill, 2008 to dissolve the Electoral Commission of Kenya (ECK) as recommended in the Kriegler report in order to have adequate time to deal with the salient matters of the special tribunal.

Timetable

There were fears that the stalemate over the fate of the ECK commissioners led by chairman Samuel Kivuitu would delay efforts to meet the Waki report deadline.

A Cabinet committee of eight members has prepared a roadmap that would guide the implementation of the report.

The “Implementation Matrix of the Waki Report”, drafted by a technical team at Justice and Constitutional Affairs minister Martha Karua’s office, has already been adopted by the Cabinet committee chaired by deputy PM Musalia Mudavadi.

According to the timetable that is set to be adopted by the Cabinet, Parliament is required to review the Constitution to anchor the Special Tribunal by the end of next month.

The amendment is meant to “entrench the tribunal and oust the jurisdiction of local courts in respect to current matters.”

This means that while respecting the provisions in the Constitution, the Special Tribunal will operate on its own rules that will be specified by a law that will set it up.

MPs also have the same timeline (January 30, 2009) to debate and pass a law that will set up the special tribunal. The Bill, to be prepared by PNU and ODM, will make provisions for the jurisdiction of the special tribunal and its operations.

The Statute for the Special Tribunal will, among other things, define the crimes which it will deal with; the composition of the tribunal including the Trial and Appeal chambers; its procedures; rights of the suspects, the accused and the victims; the punishments to be meted; the appointment of the prosecutors, the registrar and defence counsels, and the code of work for its staff.

This means that President Kibaki, who still wields control over the calendar of the National Assembly, is likely to invoke the powers and recall Parliament.

Sources have indicated that should Mr Annan decline to give the Government more time, the President would summon MPs back to the House by January 20, 2009 to enact the laws.

This is because the President and the PM will have only one month after the passing of the law setting up the tribunal to start constituting it. The timetable indicates that the special tribunal has to start operating as from March 1, 2009.

To bar the suspects from influencing the tribunal, President Kibaki and Mr Odinga will work hand in hand with the Panel of Eminent African Personalities chaired by Mr Annan in constituting it.

The road map shows that President Kibaki and Mr Odinga will only have the free hand of appointing the chairperson of the Trial and Appeal chambers of the tribunal.

Names of the two other judges for both chambers, the prosecutor and deputy prosecutor, the registrar, and the chief defence counsel will be provided by Annan team and the role of the President and the PM will be to appoint them.

Apart from the chairman of the Trial and Appeal chambers, it is only the junior staff of the tribunal who will be Kenyans.