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Efforts to form Special Local Tribunal ought to be rejuvenated

By | February 9th 2012


The International Criminal Court intervened in the Kenyan post-election violence situation, as parliament was unwilling to legislate the formation of the Special Local Tribunal the suspects.

Indeed, some MPs were vocal that the ICC would take a century to prosecute any person and hence creation of a local tribunal was necessary. In contrast, scores of Kenyans were against formation of such a tribunal unless it was of a hybrid nature; such that the composition of the judgeships and prosecutorial arm was to include credible and respected international legal and judicial experts.

Additionally, the Kenyan judiciary, unlike today, was perceived to be corrupt, inept and ineffective and thus could not be relied upon to prosecutor the real masterminds of the violence. In any case, the Judiciary and the prosecutor were unwilling before to prosecute the political class and elite on any criminal offences.

However, four years down the line, the need and urgency of creating a Local Special Tribunal or a Special Division of the High Court to deal with crimes committed in 2007/2008 still exists. Historically, ad hoc international criminal tribunals have been generally fast, effective and offer quick justice for both the victims and the suspects as they have a clear mandate and a defined timeline that they must finish their duty.

They also have more legal powers like the powers to demand the attendance of a witness and normally receive more judicial co-operation and assistance from the international community. Above all, due to the hybrid nature of such tribunals, they nurture restorative justice and peace mechanism unlike the ICC that pursues punitive justice alone.

Foot soldiers

Generally, there are better than the permanent International Criminal Court. A case study is the UN ad hoc tribunals, International Criminal Tribunal for former Yugoslavia and International Criminal Tribunal for Rwanda that have been successful in completing trials.

At the international criminal law scholarship, these tribunals have also contributed immensely in the jurisprudence and prosecution of the international crimes at the ICC.

In this background, the MPs committed a grave mistake by refusing a local special tribunal as this invited intervention of the ICC which is slow in prosecution of international crimes.

The court is now ten years old but has not convicted anyone and because it has many cases and situations before it but due to resource and logistical constraints, it cannot discharge its judicial role within reasonable time. This consequently becomes a miscarriage of justice as justice is delayed.

This contravenes the rule of natural justice. Therefore, the ICC Trust Fund that is supposed to benefit the victims and families of such crimes is largely inaccessible to these people due slowness of the court.

In addition, failure to establish the local tribunal denied us a chance to know the list of the 20 people contained in the popular "Waki Envelope". The Waki report and evidence submitted to the ICC prosecutor formed a substantial part of the prosecutor’s investigation and with the of four suspects before the ICC, there is likelihood that much high-, middle-level perpetrators and thousands of foot soldiers who committed crimes in 2007/08 will never be punished.

Therefore, if a local tribunal or a special division of the High Court to deal with international crimes like that of Uganda is created, we will exhaustively prosecute all persons, low and mighty, that committed crimes in the aftermath of the 2007 polls. As yet, the concentration on prosecution of four Kenyans in the ICC has created a window for many perpetrators of the violence to remain free.

In return, this leads to a path of an uncertain future as a section of people who planned, financed and executed these crimes are still free and will be ready to do the same in future.

Failure to investigate and prosecute those named in the Waki list, the initial draft of KNHRC and Human Rights Watch Report depicts the ICC prosecution as Victor’s Justice.

In any case, we now have some of the best judges in the world, recruited in transparent and fair vetting process. With the impending vetting of the old judges and ongoing transformation of the Judiciary, Kenya can successfully prosecute international crimes.

Horse trading

Further, we are amongst the few members of the Assembly of State Parties that has already domesticated the Rome Statute on ICC through the International Crimes Act 2008.

The recent process of appointing judges was in fact better than that of the ICC where the Judges, Chief Prosecutor and Deputy Chief Prosecutor are elected through a political horse trading manner.

Merit and honour are not the fundamental yardsticks that the Assembly of State Parties to the ICC considers but rather political and regional interests. Worst of all, some members of the ICC Chamber are not lawyers or former judicial officers by training but rather former diplomats and thus their understanding of law is in doubt.

Writer is a lawyer and graduate student in International Criminal Law.

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