What exactly did the Cabinet decide on a special tribunal?

Kenyans are being bombarded by a cacophony wrongly characterised as “debate” over the apparent failure by both the government and Parliament to establish a special tribunal as recommended by the Waki Commission.

The Cabinet resolution of July 31 emanated from the last of a series of Cabinet meetings specifically called to discuss the establishment of a special tribunal. It outlined five “options” that had been “extensively considered” and rejected by the Cabinet. Later, Justice minister Mutula Kilonzo clarified that the Cabinet Technical Committee had proposed only two options.

The first was to set up the special tribunal contained in the Cabinet Memorandum of July 14. The second concerned a voluntary referral to the ICC under Article 14 of the Rome Statute and pursuant to Kenya’s international obligations, and in compliance with the agreement the government signed with Mr Luis Moreno-Ocampo on July 3.

The agreement provides that, if by the end of September, the government fails to report on the status of investigations, prosecutions and any other information requested by the prosecutor; provide information on witness protection measures and completion of suitable judicial proceedings and information for conducting national investigations and prosecutions or other judicial mechanism adopted by Parliament over the next 12 months, the government would refer the situation to the prosecutor.

The Cabinet made four resolutions that deserve comment. Firstly, it reaffirmed its commitment to the rule of law. It undertook to cooperate and fulfil its obligations to the ICC. The question then ought to be: Will Kenya refer the situation to the ICC? Will Kenya arrest and deliver anyone indicted by the ICC?

If the answers to both questions are yes, it means that those who prefer The Hague as the only option shouldn’t be complaining at all. Unwittingly, the Cabinet might have opened the door for Mr Moreno-Ocampo.

Secondly, the Cabinet undertook to accelerate far-reaching reforms in the Judiciary, Police Force and the investigative arms of government to enable them to investigate, prosecute and try perpetrators of post-election violence locally.

There was recognition that the bulk of prosecutions not intended for The Hague should await comprehensive reforms to ensure justice for both the accused and the victims.

Thirdly, the Cabinet resolved to deal with other forms of impunity, including extrajudicial killings, corruption and fraudulent or unlawful acquisition of public land and other public assets.

Critics ought to ask: How? This resolution has not been interrogated. If the government is fully committed to addressing impunity, is there anyone who can justifiably say no?

Lastly, the Cabinet resolved to propose amendments to the TJRC Act to make it more representative and effective. My understanding is that the six local members might not fully represent the various Kenyan communities, regions and interests. The proposed amendments would allow for the composition to be representative to ensure truth, justice, reconciliation and healing.

For a credible independent special tribunal to be established, it must have the following nine ingredients:

Its proceedings must be (i) exempted from the immunity provided to the President; (ii) insulated from the powers of the Attorney-General to take over or terminate proceedings; (iii) exempted from provisions relating to the prerogative of mercy; (iv) separated from the rest of the Judiciary; (v) shielded from the jurisdiction of the High Court; (vi) secured against potential challenges, particularly the provisions relating to non-retroactivity of criminal legislation; (viii) empowered to compel constitutional office-holders to vacate them upon indictment; and (ix) ensured financial independence.

The cabinet resolution read by the President does not contain any proposed amendments to the TJRC Act intended to transform the process into a judicial criminal proceeding, although a few Cabinet ministers have implied this.

The Cabinet ought to be alive to the fact that the TJRC Act entrenches its independence and clearly prohibits all forms of interference or influence from all quarters. Criminal accountability exclusively vests with genuine judicial mechanisms that uphold and meet international standards.