ICTJ in the News

December 3, 2008

Lawyers fault draft law on setting up poll chaos court

Daily Nation

By Oliver Mathenge

A lawyers conference on Wednesday faulted the draft statute on the formation of a special tribunal to try post-election violence suspects.

At the conference, two MPs revealed that there was intense lobbying in Parliament to hurriedly have the tribunal formed.

The lawyers said the draft law lacks capability to shield the tribunal from political manipulation.

It also contradicts sections of the Constitution that allowed the President to pardon convicts and the attorney-general to terminate the proceedings.

Rights abuse

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

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

"The draft as published on Wednesday in newspapers 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 noted.

The workshop's guest speaker Gitobu Imanyara said implementation of the entire Waki report, that is leading to the formation of the tribunal, lacked political will.

The Imenti Central MP noted that 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.

He noted that impunity was not likely to be dealt with conclusively, leading to higher human rights violations in the future, if a local tribunal is not properly constituted.

"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 if the formation of the tribunal was left to politicians the country would fail to deal with impunity.

He therefore felt the involvement of the international community was central in the establishment and running of the tribunal.

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

He noted that some of the politicians who want the tribunal formed hastily 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 want the issue to go to The Hague. They find the formation of a local tribunal as one of the ways through which they can manipulate the process.

"We must be able to free the tribunal from political manipulation," said Mr Kioni.

Lost faith

He said Kenyans had lost faith in any local mechanisms to handle matters such as the post-election chaos. Their only hope lied in the International Criminal Court, he noted.

The lawyers at the workshop noted that it was unclear who would lead the investigations as those responsible, the police, were also adversely mentioned in the Waki report.

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

She expressed concern that the draft was also unclear on the removal of members of the tribunal.

"Lawyers fault draft law on setting up poll chaos court" originally appeared in the Daily Nation.