Nairobi Star (Nairobi)
Nzau Msau
3 December 2008
Nairobi — A non-Kenyan will head the proposed tribunal to investigate and prosecute those responsible for election violence.
The independent Prosecutor will be appointed by the President in consultation with the Prime Minister from a list of persons nominated by the Panel of Eminent Persons led by Kofi Annan that brokered the peace settlement earlier this year.
"The Prosecutor shall act independently as a separate organ of the special Tribunal and shall not seek or receive instructions from any person or authority," the draft Bill establishing the tribunal says in part.
The Bill is due to be presented to Parliament by Justice minister Martha Karua before 17 December when Parliament goes on Christmas recess.
According to the draft Bill prepared by the Ministry of Justice and Constitutional Affairs and exclusively obtained by Nairobi Star (see Page 26-29), the tribunal shall have the power to prosecute persons responsible for genocide, gross violations of human rights and crimes against humanity committed in Kenya.
It establishes two chambers - a trial and an appeals chamber - each of which will be headed by a top ranking Kenyan judge who will have two non-Kenyan judges as assistants.
Justice Philip Waki set a deadline of 14 December for the establishment of the tribunal after which he had requested Annan to forward the secret list of suspected perpetrators to the International Criminal Court in the Hague.
The proposed statute binds the judges to sentence guilty persons to life imprisonment or to prison terms in line with international law. They will as well be barred them from holding elected offices or public positions.
The tribunal will have exclusive jurisdiction to prosecute post-election crimes over any other court and suspects tried under it will not be tried elsewhere.
The draft Bill will first be discussed and approved by the Serena Panel which included Martha Karua, Moses Wetangula, Mutula Kilonzo and Sam Ongeri for PNU while the ODM team members were Musalia Mudavadi, William Ruto,James Orengo and Sally Kosgey,
The tribunal is modelled on Justice Philip Waki's recommendations and will prosecute violations committed between 1 December 2007 and 28 February 2008.
People who, on the basis of ethnicity, killed, caused serious bodily or mental harm, mutilated genitalia of others or separated children from their families will face charges of genocide. Suspects could be tried of conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide and complicity in genocide.
The draft statute lists murder, extermination, enslavement, imprisonment, torture, rape, deportation, harassment, destruction of property, ethno-politically based persecutions and other inhumane acts as crimes against humanity.
Also targeted will be anyone who planned, instigated, ordered, committed or otherwise abetted in the planning, preparation or execution of these crimes.
Such people will be "held individually responsible for the crime".
State agents including the police, the army or the administration will be individually liable if they committed any of these crimes.
"The fact that any of the acts were committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts. Similarly, the fact that an accused was acting on the orders of a government or a superior will not relieve them of criminal responsibility," says the Bill.
The prosecutor will initiate investigations on the basis of Waki report and its envelope, his own motion or on basis of information obtained from any source.
If he determines there is a credible case, he will prepare an indictment with specific charges and concise statement of facts to be transmitted to a judge of the trial chamber for review and to confirm or dismiss it.
If confirmed, a summons will be issued for the suspect to appear before the tribunal within seven days failure to which a warrant of arrest will be issued. All persons confirmed as indicted will be held in custody of the tribunal.
The suspects will however enjoy all the basic rights including the right to remain silent, legal assistance and representation. Trials could also be held in absentia if the accused waives his right to be present or he cannot be found after reasonable efforts have been made to have him present.
Appeals will be lodged in 30 days of delivery of judgment and appellate chamber's determination will be final.
The prosecutor can also seek review of judgment if new facts not known at the time of proceedings and which could have been decisive factors in the judgment emerge.
Where an accused is convicted for more than one crime, the sentences imposed shall be deemed cumulative and not concurrent as has been the case in the past.
Besides punishing convicted people, the tribunal will identify victims to be compensated as a result of commission of crimes. Its word on compensation will be final.
Suspects who cannot afford their own lawyers will have someone appointed for them if they met the criteria prepared by the Tribunal. Legal assistance shall only be provided to people for whom an indictment has been issued and confirmed by the Chamber. The lawyers will be paid a honorarium determined by the Tribunal.
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Irrespective of who won the elections...kenyans died. i did not see kibaki weild a panga, i did not see raila shoot an arrow...but people died.let each individual pay for his own crime.. lets not hide behind the argument of who won or who lost. i mean, who gave others the right to burn people in churches, the right to circumcise, the right to behead, the right to rape loot and plunder?
this tribunal is timely,let the guilty pay for their actions. and if the tribunal does not deliver, let the Hague come in and do their thing.
But after all is said and done, people died...
" .. A non-Kenyan will head the proposed tribunal .. "
Poor Kenyans.
Houses in ruins. Foreigners rejoice and raze them further.
Poor house of Mumia. Poor house of Lenana. Poor house of Koitalel arap Samoei. Poor house of Mumbi.
Gone are the days of greatness. Great bomas of Kenya go to waste.
After centuries of greatness, Kenyans now rely on foreigners to put their house in order. Didn't the ancestors caution them that it is the wearer who knows where the shoe pinches?
They even have forsaken the ancestors. Now it is Sheng and foreign tongues, corruption by elders and infidelity, AIDS. Death of society..
Woe unto them.
In my understanding, I come to a confusion and that is because the origin of the trouble is known.Nobody ignore that the election was won by the prime minister. When the president persisted while he lost than came the worst.This investigation has no foundation, the innocents will be pesecuted when we know the origin of that crisis. Who will arrest the President. Muache mchezo, we need the progress and security than all these comedies.