Serena team hits a snag over ‘guilty’ ministers

By David Ohito and Beauttah Omanga

The Serena team that negotiated the agreement that ended post-election violence after the 2007 General Election ran into a roadblock when they met to fine-tune the law that will guide the formation of a tribunal to try post-election offenders.

Four of the eight members of the team had met yesterday to finalise the tribunal’s legal framework, but the meeting ended abruptly over what Justice and Constitutional Affairs minister Martha Karua called "weighty issues".

The issues includes the fate of Cabinet ministers implicated in post-election offences, with one member proposing that they remain in office until proven guilty.

Suspension

The Justice Philip Waki-led commission had proposed the immediate suspension of ministers implicated and a ban from holding office in the future.

Yesterday’s meeting, held at Ms Karua’s office, was attended by Mr Mutula Kilonzo (Nairobi Metropolitan) for PNU and Dr Sally Kosgei (Higher Education) and Mr James Orengo (Lands) for ODM.

It, however, ended after a heated debate over the "weighty issues".

The team reconvenes on Friday when it is hoped the other members will be present to take a common stand on the draft statute for the establishment of a Special Tribunal before it is tabled in Parliament.

Other members of the committee are Cabinet ministers Sam Ongeri (Education) William Ruto (Agriculture), Moses Wetangula (Foreign Affairs) and Deputy Prime Minister Musalia Mudavadi.

Mr Mudavadi and Mr Ruto are out of the country, accompanying Prime Minister Raila Odinga on an official visit to India. They are expected back today.

Yesterday, Karua said the Friday meeting will deliberate on the "weighty matters", but declined to explain further.

"We were to meet and discuss weighty matters, but we have decided to reschedule the meeting for Friday morning to give our colleagues who are out of the country time to be back," Karua told The Standard at her Co-operative House office.

The Standard has established independently that some of the sticking points include whether Cabinet ministers implicated in post-election violence should remain in office.

"Key on the agenda is what should be done in case a senior member of Government is implicated. There is a proposal to include a clause that ministers who may be implicated should not be asked to step a side, but instead be allowed to hold office until found guilty," said a source privy to the negotiations.

The source, who requested anonymity because of the sensitivity of the matter, said those pushing for the clause argue that they want to ensure those serving in the coalition Government continue to hold office as the prosecution progresses.

The proposal, if accepted by the Serena team, would have to be taken to Parliament for approval.

Disputed Poll

The source said among those to be shielded include Cabinet ministers and senior civil servants, whose names Justice Waki hinted might be in the envelope he gave to Dr Kofi Annan, the chief mediator in talks following the disputed 2007 General Election.

Annan will give the envelope to the yet to be constituted Special Tribunal.

In the past, former Finance ministers Amos Kimunya and David Mwiraria, and Energy Minister Kiraitu Murungi, when he was in charge of the Justice docket, stepped aside to pave way for investigation.

Meanwhile, the Human Rights Watch (HRW) has raised a red flag on possible legislative flaws that may allow key suspects to evade trial.

In a letter to the Serena team, HRW said the Special Tribunal should focus on a limited number of post-election violence suspects.

HRW Africa Director Georgette Gagnon warned: "The numbers of crime perpetrators during the post-election period are in their thousands and would bog down the process and overwhelm it by caseload."

Article one of the statute, she said, should limit the tribunal’s jurisdiction to "persons most responsible".

Imenti Central MP Gitobu Imanyara expressed hope that fine-tuning of the draft on the Special Tribunal would incorporate recommendations by HRW and other law experts.

"We pray the drafters make an inclusive and consultative Bill which factors in the issues raised to make a good law," Mr Imanyara said.

Constitutional (amendment) Bills are not subject to changes when tabled before Parliament. They are passed in their original form.

Lawyers have also supported calls to ensure the tribunal does not rely on Government to finance its operations.

Lawyer Paul Muite said: "It should be provided with adequate resources from national and international donors to include the expense of all operations of investigation to ensure independence."

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