Statute on Special Tribunal for Kenya Can Do with Fine Tuning

The following article originally appeared in The Standard. Linda Ochiel is communications officer for the Open Society Initiative for East Africa.

Agriculture Minister William Ruto’s sudden change of mind about the Waki Report presages a tactful shift in position by politicians previously against setting up a tribunal to investigate and prosecute post-election violence suspects.

The tone and content of the recent criticism of the report should put us on high alert to ensure justice is done and that the government’s decision to publish a bill and sign the requisite agreement setting up the Special Tribunal for Kenya is not just an exercise to improve its reputation among the public and international partners.

Signing the agreement and drafting the statute for the tribunal are a step in the right direction. But parliament last week passed rules that may allow people on Waki’s list of suspects to bargain for their freedom. This triggers another bout of cold sweat for those waiting to see justice done.

A number of issues in the bill establishing the Special Tribunal demand attention. These, if considered, would seal possible loopholes that may derail the process. First, the bill states the crimes to be prosecuted and defines two categories: Genocide and violations of human rights. However, the terms it lists under crimes against humanity—"extermination," "enslavement," "deportation," "torture," and "harassment" among others—should be defined for clarity.

The tribunal will require cooperation from government and its departments, including the Kenya Police. Its organs should also be insulated from objections of constitutionality. It must be shielded from the kind of obstacles that have plagued statutory institutions like the Kenya National Commission on Human Rights.

The statute should, thus, include a clause that compels all ministries and national authorities to cooperate with the Special Tribunal in its investigations and prosecutions. These bodies must comply without undue delay to any request for assistance or orders issued by the tribunal.

The statute should give the tribunal and its officers full immunity from civil or criminal proceedings related to or arising out of work duties undertaken in the course of performance of its mandate. The judges, the prosecutor and the registrar should further enjoy the privileges and immunities, exemptions and facilities accorded to diplomatic envoys.

The bill gives the tribunal full autonomy in recruiting and controlling its staff. Such staff must, however, be recruited competitively. For the tribunal to be independent and effectively discharge its functions, it must be adequately funded. Indeed, its expenses should be determined by the Panel of Eminent Persons in consultation with parliament and directly be charged to the Consolidated Fund.

Support

The bill should be clear on whether the tribunal can receive support from the international community and others in the form of contributions, funds, equipment and services. It should also be clear on the date of commencement of the operations after the receipt of presidential assent.

Whereas it is recommended that the president appoint the presiding judges of the Trial and Appeals Chambers in consultation with the prime minister and the chief justice, it would useful to also consult bodies such as the Law Society of Kenya. It would also add value if the president appointed the tribunal’s judges, but allowed them to elect a chairperson from among themselves.

The territorial jurisdiction of the tribunal should include the territory of any state in respect of acts of citizens living abroad aiding, abetting or otherwise undertaking acts in support or connected to violations and crimes committed in Kenya and related to the post-election period.

The bill lists criteria under which a person who has been tried before a national court may be subsequently tried by the tribunal. This should include a clause that enables re-trial where a new fact has been discovered which was not known at the time of the proceedings before the court and which could have been a decisive factor in reaching the decision.

Finally, the bill recommends that the tribunal’s Appeals Chamber be headed by a Kenyan. But what is the merit in having the Trial Chamber headed by a foreigner? The Waki Commission has proven there are Kenyan judges who can drive this process.