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Special Division idea a non-starter

By | July 3rd 2009 at 00:00:00 GMT +0300

Why do some Government officials want a Special Division created in the High Court to handle post-election violence suspects, instead of an independent Special Tribunal? It is certainly not to ensure the accused "free and fair" trials as they claim. This ‘option’, hot on the heels of a proposal to have a special court in a neutral neighbouring country, proposes to introduce the very weaknesses the nation should be avoiding.

Our fears that politicians leading the process intend to render the tribunal susceptible to undue influence and intimidation appear to have been prescient.

A Special Division was specifically ruled out by the Waki Commission because it would lack the independence needed to ensure fair trials. It would not have the same constitutional protections as a Special Tribunal and it would not be free of Government control. Its judges would be appointed, paid by and answerable to the Executive and its rulings would be subject to challenges in the Court of Appeal. Changes to law to mitigate against these factors could help, but they would limit the court’s ability to investigate, prosecute and adjudicate crimes it is supposed to deal with.

The whole point of a Special Tribunal is to put the process beyond the reach of politics. But, like the proposal of a court embedded in the Truth, Justice and Reconciliation Commission, this new idea seems to be another attempt to open the door to the use of pliable judges and bungling prosecutors and investigators.

Accusations of bias

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The court Waki proposed was to have an international component in the form of non-Kenyans on the senior investigations and prosecution staff, not just at the helm. Now we hear of proposals that would put the process under Chief Justice Evan Gicheru. How is this preferable to an institution set in the Constitution with independent investigators, prosecutors and judges? Won’t accusations of bias damage the court’s credibility with the public?

Proponents of this idea say it is adopted from Uganda and Bosnia and Herzegovina. However, the attempts there failed.

Impeccable sources say Justice Minister Mutula Kilonzo and his colleagues support this weak approach. Pray tell, why?

This suggestion is even worse than the February call by nominated MP Musikari Kombo for a "special magistrates’ court" to try suspects accused of small crimes: At least Kombo’s solution isolated cases where political interference was most likely. The main weakness in Kombo’s plan, however, is that ‘big’ offenders would probably go unpunished.

It would appear resistance by lawmakers to a Special Tribunal is so entrenched and formidable, we are now grasping at straws. A sign of this should have been reports Mutula and two other ministers in Geneva to meet with Dr Kofi Annan asked for more time, despite the assurance from Prime Minister Raila Odinga they would not do so, and did not need to.

Despite the brave face being put up, it seems the Statute for a Special Tribunal for Kenya would meet with another defeat should it be brought back before Parliament. While this makes it necessary to explore other options, the search should not make concessions that weaken the search for justice. After all, this is about the 1,133 people killed, the thousands maimed or raped and the hundreds of thousands displaced.

The idea of a special court set up in a neighbouring country, a ‘third option’ Mutula was tasked to push for along with Attorney-General Amos Wako and Lands Minister James Orengo, would be a preferable compromise as long as it reflected the need for credibility and impartiality.

Political Charade

We are disappointed that opposition to a Special Tribunal is still so strong among MPs despite every indication it would be the fairest way to deal with suspects. This sets back the fight against impunity and bolsters the false idea crimes committed for political reasons are entitled to some form of absolution.

We say again: Impunity must not be fed another morsel of this country’s soul. The innocent and guilty must all face a fair and impartial trial process, not a political charade.

Special Division High Court Special Tribunal Waki Commission Geneva
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