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Tribunal: Last minute bid to end impasse flops

By | July 21st 2009
By | July 21st 2009

By David Ohito and Beauttah Omanga

President Kibaki took his position at the oval Cabinet table and called the second session of ministers to order but once again talks deadlocked.

"We did not move an inch from where we were last week," one minister at the meeting that lasted four hours told The Standard. This captured the image of the Grand Coalition as bearer of two faces — in public it is one of unity and purpose but behind closed doors it is a divided house that could at best be described as Kenya’s Tower Babel. However, like last week the Presidential Press Dispatch was upbeat about the coming week and the third meeting: "After making considerable and substantial progress the Cabinet adjourned to next week to enable a team headed by the Minister for Justice, National Cohesion and Constitutional Affairs to refine the proposals discussed."

With President Kibaki on the controls was Prime minister Raila Odinga with whom they are pushing the wheel of a local tribunal that Parliament, which resumes sittings on Monday, shot down in February and has promised it would not hesitate to do it again.

The meeting at State House to smoothen way for Kenya-based special tribunal for high-profiled suspects of post-election violence drew a blank, and like last week’s, was moved to the week next.

The sticky point at yesterday’s session was again whether the President, who is insulated by law from prosecution while in office, or even the Prime minister, should be opened up for trial.

The implication of a tribunal satisfying the Rome Statutes, which in turn sets the standards for the International Criminal Court, as well as those of a reputable local tribunal Kenya is seeking, is just that — no one is insulated.

The proposed Special division of the High Court, created under the Chief Justice, has triggered fears among MPs and human rights groups it may be politically manipulated and ‘managed’, a fear that has precipitated popularity of The Hague option, as well as further polarisation of the Grand Coalition.

Target of criticism

The brisk optimism reflected in last week’s communiquÈ from the President’s office was echoed in Monday’s but sources reveal it was not that rosy in the meeting, in which it is reported Agriculture minister William Ruto was target of criticism by the principal over his public statements on the prospect of ICC or a local tribunal.

One of the sticking points, sources said, was whether the President should face trial while in office if implicated in the violence that left over 1,300 people dead after his controversial re-election in 2007.

Kibaki, who was the subject of discussion, is reported to have remained quiet through the debate.

A section of ministers stood their ground against Bills drafted by Mutula on whether the President should be prosecuted in case he was implicated in the post-election violence.

A source said while majority of the ministers were of the view that the President should not be subjected to any prosecution while in office, others said even if the Head of State deserved protection, the new Bill must have that clause so as to meet the international legal thresholds.

A source said Mutula explained to his colleagues that while in The Hague where they met top ICC officials, they agreed to implement the Rome Statute.

"The deal we signed with Ocampo is very clear that in case we were to set up a local tribunal, we must form it within the Rome Statute context which does not exempt a Head of State from prosecution in the event he is implicated in crimes against humanity and mass murder," explained Mutula.

The deal signed with International Criminal Court Chief Prosecutor Louis Moreno-Ocampo read in part: "Both Kenya and the ICC Prosecutor agreed that impunity is not an option, that to prevent new violence in 2012 it is necessary to prosecute those responsible for the crimes committed during the post election violence."

Mutula reportedly assured the Cabinet that while including the clause in the proposed Bill, he was acting in good faith to avoid giving the ICC an opportunity to dismiss a local tribunal.

A minister who spoke on condition of anonymity told The Standard that it was then agreed that for the sake of the country’s unity, a committee be formed to redraft the Bill after reviewing it to ensure "that leaders who are holding the country together were not subjected to any embarrassment that might trigger turmoil".

United Kenya

"We agreed that peace for Kenyans and a united Kenya should be the basis of whatever we will come up with. Mutula received support in his efforts to explain the risks of drafting a Bill that will end up being trashed by the International Court, which will then go ahead to act on the leaders who might be implicated," said the minister.

Sources said unlike the previous meeting, yesterday’s was calm as leaders spoke with the purpose of avoiding The Hague option.

"I was surprised that some toned down and seemed to see the reality of prosecution in case they failed to act quickly," said another source.

Yet again the Cabinet postponed the crucial meeting and deferred it to next week to buy time and allow ministers to change heart.

The stalemate only piled pressure on the Government and the principals ahead of Monday’s opening of Parliament.

The Cabinet is expected to endorse the proposed Bill creating the Special Tribunal before it is introduced in Parliament where the main battle in avoiding the road to The Hague will be fought.

MPs have maintained they prefer the ICC because they do not trust the independence of the Judiciary and degree of political interference locally.

Another minister is reported to have told his colleagues that they were wasting time if they did not adhere to the contract signed with Ocampo with September deadline.

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