Elusive search for a special local tribunal

November 14, last year, is a day many legislators would rather forget fast.

On this day Parliament lost the last chance of initiating a process that would have set up a special local tribunal and possibly block ICC Chief Prosecutor Luis Moreno-Ocampo from seeking to prosecutor Kenya’s 2007 post-poll chaos suspects.

But when members of the august House snubbed debate on Imenti Central’s MP Gitobu Imanyara Bill to form a local tribunal, they set off a series of events that would return to haunt them.

The nation’s quest to form a local tribunal has had a chequered past and dates back to August 2008, as one of the recommendations made by the Justice Phillip Waki-led commission.

As it was then, opinion is still divided on setting up of a tribunal, with a Motion seeking Kenya’s withdrawal from a treaty subjecting the nation to the ICC process.

Chance lost

"We should have set up a tribunal as early as March 2008. Had we done so, we would have addressed several issues relating to post-election violence and the ICC would not have come knocking," says former Committee of Experts member Otiende Amollo.

He adds: "I see no point setting up a tribunal now. The chance we had at trying suspects linked to the chaos is gone because ICC will not give up its jurisdiction on the matter now."

Mr Amollo, an advocate of the High Court, says the process of setting up a tribunal will take no less than a year, within which the country will be facing an election.

"It (process) includes passing legislation, selecting persons to sit on the tribunal, identifying those to be tried and giving them an opportunity to respond," he says.

He argues given the current circumstances, a tribunal would heighten tribal and political tensions ahead of the 2012 polls.

"Emphasis should be on reconciliation. The only option is to have other suspects tried in our ordinary courts," he adds.

As Parliament mulls over the possibility of pulling Kenya out of the Rome Statute, it is crucial to note conditions had been set by the court prior to Ocampo taking up the case, which include the absence of a viable local alternative to handle the matter. On not less than three occasions, chances to seize that option were squandered.

December 17, 2008, bore hope of a tribunal being established, with the signing of a pact between President Kibaki and Prime Minister Raila Odinga. But that optimism was shortlived as subsequent events proved.

MPs fired the first salvo when they rejected two Bills by then Justice Minister Martha Karua, in February last year to form a local tribunal. By then the Government was behind schedule in setting up the body. Subsequent efforts by Karua to pass the Constitution of Kenya (Amendment) Bill and the Special Tribunal for Kenya Bill in March met a similar fate.

With Karua’s exist from the Justice ministry and Mutula Kilonzo’s entry, Kibaki and Raila launched a fresh bid to have the Bills re-introduced to the House in June last year. This too was defeated.

Twice in the following month, Cabinet, essentially setting the stage for The Hague option, shot down Mutula’s Bills.

"Establishing a tribunal, in principle, would have been desirable, but it is now difficult under the current atmosphere. The politics of 2007 post-poll violence draws in everyone and there is no one on the sidelines to independently lead such efforts at the political level," says International Commission of Jurists Executive Director George Kegoro.

In moving a Motion to have the International Crimes Act repealed thereby setting Kenya free from the Rome Statute, Chepalungu MP Isaac Ruto wants Kenya to severe ties with ICC whose involvement in the poll chaos case, he argues, presupposes the Government cannot apprehend or question suspects. Such a presumption, Ruto argues, doesn’t hold since Kenya has a new Constitution.

New Constitution

"I have never subscribed to Kenya being subjected to the ICC process because in my view it is an option reserved for failed states. We have institutions, which could ably handle the case. What lacks is political will," says PNU Vice-chairman George Nyamweya.

He adds: "We don’t necessarily need a tribunal. We have a new Constitution and Parliament will soon conclude the process of setting up a Judicial Service Commission, which will see judges vetted afresh. We could then set up a division within the courts to handle the post-election cases."

He argues it would be illogical for the Judiciary to undergo reforms only to have post-poll cases tried at The Hague. But Mr Kegoro differs asking: "It is nice to say we should have a local mechanism, but where do we start?"

Other crimes

He adds: "The police are implicated in some of the cases, so who else will investigate? The AG is on his way out, the Judiciary is restless and about to be vetted."

ODM Secretary of Legal Affairs Mugambi Imanyara says: "We need a mechanism to try other crimes, but the assumption that setting up a tribunal would cause the ICC to abandon its case, is misconceived."