ICTJ in the News

December 5, 2008

Tribunal: Beware of wily politicians, warns lawyer

Daily Nation

She has stepped on the hottest spots in the world, and her hawk eyes have scanned critical evidence in some of the worst political upheavals in recent history.

For the 10 years, Ms Marieke Wierda has been prosecutor for special tribunals in crisis-torn countries, it has been all about justice for most of the of citizens following gross crimes against humanity by political leaders and militias.

Yet when she arrived in Kenya this week, the director of prosecutions at the International Centre for Transitional Justice (ICTJ) found a political situation she had never encountered elsewhere.

Bungled presidential poll

"We are yet to deal with a crisis arising from a bungled presidential election, which then took an ethnic angle," said the Dutch woman.

"All the global crises we have seen are unique in their own form and the Kenyan situation is no different."

Ms Wierda flew in from her work station in Beirut, Lebanon, on Tuesday at the invitation of the International Centre for Policy and Conflict (ICPC).

The following day, she addressed a charged conference on formation of a special local tribunal to try suspects of the post-election violence, as recommended by the Waki commission.

After the address, she told the Saturday Nation that "something is wrong" with the way Kenya is handling the local tribunal issues.

And it is difficult to ignore her words, given her experience with cases at the International Criminal Court in The Hague.

As a young lawyer in 1997, Ms Wierda joined the International Criminal Tribunal for the former Yugoslavia, which was set up by the United Nation's Security Council following the country's disintegration in 1991. She worked there for three years.

When she joined ICTJ in 2001, her first assignment was in the Sierra Leone tribunal in which the bone of contention was if the truth and reconciliation commission should share evidence with the tribunal.

And three years ago, she was at the Iraq high tribunal in Baghdad which convicted former President Saddam Hussein. He was hanged.

Time in Uganda

Right now Ms Wierda is spending time in Uganda, where a special division of the High Court was created in May to try Lord's Resistance Army leader Joseph Kony and his militia over crimes in the north.

She said local politicians, more than internatinal politics, interfered with the tribunal that convicted Saddam. She added that she fears local politics could jeopardise justice for the aggrieved in Kenya.

"Saddam never got a fair hearing," said the lawyer who is the head of ICTJ in Uganda, Sierra Leone and Afghanistan.

"Court officials were removed at the behest of local politicians and some defence counsel murdered. It was a bungled tribunal."

And she warned Kenyans: "Some of the people who never supported the tribunal but have now changed tune, could be plotting how to interfere in its operations."

She pointed out that Kenya's case has no precedent, and that it would be better not to have a tribunal than have one whose operations will not go by the rule.

Already, she noted, the draft bill set to be adopted by Parliament is moving in the wrong direction.

"The greatest threat to this bill and the process is lack of a political agreement," she noted. "Why wasn't the political agreement signed as stipulated in the Waki recommendations?"

According to her, the loophole could jeopardise the whole process. The framework of the tribunal was to be contained in the pact, whose signatories were to be the grand coalition government, the panel of Eminent African Persons and the African Union.

Ms Wierda said the amount and level of evidence needed before one may appear before the tribunal is so much that it may jeopardise the need for the tribunal itself.

A suspect is supposed to undergo a thorough pre-trial process before appearing in the tribunal, she added.

"It is not known how this pre-trial judge should be appointed. He or she could be used by the political class to let them off the hook," she said, adding that definitions of some crimes are not in tandem with those contained in the International Criminal Court's Bill.

The prosecutor, however, cited the hybrid nature of the tribunal brought about by the international input as one of its strengths.

She said: "This will cushion it against local interference. I am sorry for those who may have thoughts of frustrating its work."

Of the three-judge tribunal, two will be foreign and the other local. The prosecutor will be a foreigner.

Other hallmarks, according to Ms Wierda, is the provision for the compensation of victims as well as the rights of suspects and the victims.

Progress made so far

In her observation on the progress so far made, the prosecutor had a disappointment for people who want the matter completed as fast as possible; it will be a slow process.

"If all goes well, the process can take between three and five years," she said. "It is a continuous process that is independent of what government is in power.

"By the end of the second year, it will be clear if the process will be fruitful or not."

Though born in the Netherlands in 1973, Ms Wierda grew up in Yemen before moving to Scotland to study law at the University of Edinburg.

She then enrolled at New York University for a masters degree in international law and human rights. A member of the New York bar, she has taught international criminal law at the University of Richmond.

Ms Wierda has, together with judge Richard May of the former Yugoslavia tribunal, authored a book on international criminal evidence.

"Tribunal: Beware of wily politicians, warns lawyer" originally appeared in the Daily Nation.