New law will give Waki suspects escape route, warn experts
Published on
By Juma Kwayera President Kibaki risks creating legal loopholes that could hand suspects indicted by the Waki Commission Report a lifeline. Two weeks after Parliament passed the Truth, Justice and Reconciliation (TJRC) Bill, providing a roadmap for tackling historical injustices, legal experts warn the Bill is fraught with inconsistencies and contradictions that need thrashing out before presidential assent. The experts and civil society warned, last week, that the controversial amnesty clause and ambiguities in definitions of the crimes the law aims to address would create a lacuna potential suspects would use to escape prosecution. Constitutional expert and University of Nairobi law lecturer, Dr Patrick Lumumba, while lauding the law as comprehensive and timely intervention against impunity, pointed out that inherent contradictions in how amnesty posed hurdles in the way of the law that could be dealt with if President Kibaki referred the law back to the House for fine-tuning. While in one section the Bill provides for amnesty to crimes against humanity, Lumumba expresses concerns other parts of the same law contradict it by ruling out amnesty for the same crimes. "The president should refer the Bill to the House with a memorandum on how these obvious inconsistencies and contradictions should be resolved," he said. The law lecturer also cited the witness protection onus, which he said has been placed under the Attorney General’s office. In his opinion the arrangement was likely to stifle the functions of TJRC once it comes on stream, as it would have no control over individuals with critical evidence. FLAWS Aware of the flaws in the recently passed TJRC Bill, politicians wary of being arraigned at the International Criminal Court (ICC) at The Hague are pushing for incorporation of the Waki Commission Report into the TJRC law, which arms the envisaged commission with investigatory powers. Consequently, pressure groups, operating under the umbrella of Multi-Sectoral Task Force, supportive of the full implementation of the recommendation of the Commission to Investigate Post-Election Violence (Cipev) that was chaired Court of Appeal Judge, Justice Phillip Waki, are piling pressure on the president to defer signing the Bill into law. They call for punishment of the perpetrators of political violence and impunity. The Waki Report has placed President Kibaki and Prime Minister Raila Odinga at loggerheads with their erstwhile backers. Vice- President Kalonzo Musyoka, Deputy Prime Minister and Minister for Trade Uhuru Kenyatta and Agriculture Minister William Ruto lead the band of politicians who have rubbished the Waki findings as outright hearsay and malicious. Some of the politicians accuse Kibaki and Raila of "callous betrayal" and have suggested that the Cipev findings be dealt with under the yet-to-be-formed TJRC. JUSTICE The President and the Prime Minister are therefore torn between shielding their political bases against looming justice and fulfilling international obligations to restore political stability. However, on Thursday, Lumumba warned against such a move, saying it would be inconsistent with the Rome Statute, to which Kenya is a party State. The Statute rules out amnesty on the three items. Dr Kofi Annan, who chaired the National Dialogue and Reconciliation Talks that gave birth to TJRC as an instrument to deal with past crimes, ruled out amnesty for suspects named in the Waki Report. The pressure by the political elite and passage of the Bill in its present form elicited a barrage of criticism from the publics, which perceive calls for shelving the Waki Report as attempts to jump the gun before the wheels of justice begin turning. In a statement issued following the passage of the TJRC Bill in Parliament, last week, the civil society said the envisaged objectives of the law will not be achieved as it is fraught with inconsistencies and contradictions, which if not corrected would be used by suspects to frustrate its implementation. "The TJRC Bill passed by Parliament would not achieve this object nor promote genuine national healing, reconciliation, justice and accountability, and sustainable peace. Instead, politicians want to use it for cover-up and self-laundering," it said.