Peter Mwaura
31 October 2008
analysis
Nairobi — Situated on Jomo Kenyatta Avenue in the middle of Freetown is a lavish and sprawling purpose-built courthouse surrounded by a 12-foot-high concrete wall with razor wire.
Patrolled by UN troops, it is the Special Court for Sierra Leone, set up to end impunity, promote reconciliation and bring to public account perpetrators of the brutality and serious crimes committed during the devastating 1991-2002 civil war in the West African country.
The court is a judicial experiment. It uses local and international judges as well as the local and international law to try "persons who bear the greatest responsibility" for the violence.
It is this judicial model that the Waki commission borrows from for its No. 1 recommendation -- setting up a special tribunal to "seek accountability against persons bearing the greatest responsibility for crimes, particularly crimes against humanity, relating to the 2007 General Elections in Kenya."
The commission borrows the Sierra Leone judicial hybrid nature and structures, but the burning question is if the tribunal will work in Kenya.
The Freetown court is accused of being too expensive, drawn-out and insensitive to local sentiments, as well as netting only the top leadership, leaving out the actual violence perpetrators.
In particular, it is criticised for not making a distinction between "attackers" and "defenders".
The verdict of history on the special court is still not yet out, and it is not certain if it has achieved, or will achieve, its goals.
Since it became operational in 2002 it has indicted only 13 people, nine of them high-level personalities, and five have been convicted.
The court will also not be able to try all the people "who bear the greatest responsibility" -- many will go scot-free. And it is unlikely that it will try more than 30 people before it winds up in 2010.
The court has been criticised also for arresting and prosecuting Hinga Norman, the former deputy defence minister and head of the civil defence forces popularly known as Kamajors, who fought alongside government soldiers against the rebels.
The Kamajors were charged with torturing and killing civilians during the war.
Norman's arrest sparked controversy over the court's legitimacy and mandate. Many Sierra Leoneans look upon him as a hero who fought off the dreaded rebels.
Thus, the court's impact on the culture of impunity in the West African country remains uncertain.
It is not certain either if the court will leave a legacy to serve as a model for ensuring accountability for serious crimes committed in other countries.
The court has particularly been criticised for gobbling up funds and having little to show for it.
It was originally set to complete its work in three years, but its operations are now scheduled to end in 2010, when it will have cost more than $200 million (Sh15 billion).
Many Sierra Leoneans are critical of this massive expenditure, and they wonder if the money could not have been better used to provide for the thousands of atrocity victims?
Similar questions, and others, may be raised in Kenya if the special tribunal is set up.
The Waki panel should have given more thought to its recommendation to make sure that the Sierra Leone model can be implemented in the Kenyan circumstances.
It did not, for example, give a thought as to how the tribunal may be funded. Although the Sierra Leonean special court was established with the help of the United Nations, it does not belong to the world organisation.
It is funded through voluntary contributions, most of them from the US and Britain.
The commission does not provide for public outreach. People need to know and understand the tribunal and the principles that will guide its operations.
The public has to buy the idea itself, or the court may not achieve its goals.
And it is not enough for the Waki panel to threaten to send a "sealed envelope" containing the names of suspects to The Hague to be tried at the International Criminal Court if the tribunal is not set up.
The threat could come to nothing.
The Panel of African Eminent Personalities, with whom the commission has entrusted the "sealed envelope", has no legal standing.
The panel cannot act on behalf of Kenya or the Government. Cases may go to the ICC only via a member state or at the initiative of the prosecutor or the UN.
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