ICTJ in the News

December 3, 2008

Lawyers fault proposed tribunal on Waki

Daily Nation

By Oliver Mathenge and Sadiki Sudhir

Lawyers have faulted a draft formulated for a tribunal to try suspects of post-election violence. At the same time, two legislators revealed that there is intense lobbying in parliament to have the tribunal hurriedly formed.

The lawyers--both local and international--say the document lacks sufficient capability to shield the tribunal from political manipulation.

They said the new law was also in contradiction with sections of the constitution that allowed the president to pardon convicts and the attorney to terminate legal proceedings.

"The draft as published seems to be unclear in several aspects. For example, what danger is there in tabling the Bill before a political agreement has been signed?" ICTJ Prosecutions Director Marieke Wierda said.

Borrowing from lessons elsewhere in the world, two prosecution experts attached to the International Centre for Transitional Justice (ICTJ) advised the country to analysis the draft further.

ICTJ is an international organisation that assists countries pursuing accountability for past mass atrocity or human rights abuse.

The concerns were raised at a workshop on the proposed special tribunal by the International Center for Policy and Conflict.

The workshop's guest speaker Imenti Central MP Gitobu Imanyara noted that the implementation of the entire Waki report lacks political will.

He said the issue should remain an international affair since the formation of the Waki commission was an initiative of the African Union and backed by the United Nations.

"The Statute to be brought before parliament must address the weaknesses noted by the Waki report such as lack of sufficient evidence to try suspects internationally," said Mr Imanyara.

He said that if the formation of the tribunal was left to politicians the country was likely to miss the opportunity of dealing with impunity.

Ndaragwa MP Jeremiah Kioni, who said that there was intense lobbying in parliament to hurriedly form the tribunal, also shared Mr Imanyara's concerns.

He said some of those pushing for the fast formation of the tribunal were "those who have changed tune on the implementation of the Waki report in the last few weeks".

"There are some MPs who do not to want the issue going to The Hague. They find the formation of a local tribunal as one of the ways that they can manipulate the process. We must be able to free the tribunal from political manipulation," said Mr Kioni.

Ms Cecile Aptel of ICTJ said that from the draft, it was not possible to see how the tribunal would differentiate between crimes that were committed during the post-election violence period and were not necessarily associated to the chaos.

She also expressed concern that the draft was also unclear on the removal of members of the tribunal thus begging whether it would be totally independent.

The draft, according to the experts, was also unclear on the differentiation between international and ordinary crimes. Ms Wierda also added that not all human rights violations qualified as crimes since state actors executed them.

The issue of the enactment of the International Crimes Bill (2008) was also raised with participants arguing that it was important in order to help put the tribunal in context.

Lawyer Betty Murungi also noted that the AG must roll out the Witness Protection Programme to enable the tribunal gather evidence from as many people as possible.

"We also need to have amendments in all other laws in the constitution that may be inconsistent with the proposed Statue establishing the tribunal," said Ms Murungi.

"Lawyers fault proposed tribunal on Waki" originally appeared in the Daily Nation.