London — Kenya is inching closer to the creation of a special tribunal, which could try a host of political figures suspected of engineering the widespread violence that swept the country last year.
The move would avoid a possible trial of these prominent personalities, including sitting cabinet ministers, by the International Criminal Court in The Hague.
Although the ICC has not issued indictments in connection with the violence, involvement of the ICC has been suggested due to its ethnic and systematic nature.
In mid-December, Kenyan president Mwai Kibaki and Prime Minister Raila Odinga agreed to form a special tribunal for Kenya with the mandate to try those suspected of being behind the 2008 violence that left more than 1,300 people dead and 350,000 displaced.
Homes were burned by gangs reportedly representing opposing political forces and property worth millions of dollars was destroyed.
The surge in violence surprised many who viewed Kenya as a stable and emerging democracy. Kenya has helped broker peace deals in the Horn of Africa as well as the Great Lakes region in east Africa.
Former UN secretary-general Kofi Annan played a key role in negotiating an agreement between Kibaki and opposition leader Odinga that ended the violence.
It resulted in a power-sharing arrangement in which Odinga became the prime minister, while Kibaki retained the presidency and shared control of the cabinet with Odinga.
The coalition government then set up a commission of inquiry into the violence that consisted of three judges: two international and one Kenyan.
The commission urged the creation of a special tribunal to try the suspected perpetrators. The commission also came up with a list of ten highly-ranked people who it said were involved in the violence.
The names were given to Annan who was entrusted to deliver the list to the ICC should the government fail to form the tribunal by March 1.
The Kenyan parliament must now pass laws that will incorporate provisions of the Rome Statute – the treaty that established the ICC – and also amend the Kenyan constitution. These actions will allow the special tribunal to prosecute war crimes and crimes against humanity.
According to the commission, the laws need to be in adopted by February so that the tribunal can become operational by the March 1 deadline.
Political figures suspected to have been involved in violence reportedly prefer the Kenya tribunal over being tried before the ICC.
However, many Kenyans say they prefer the perpetrators to be tried at The Hague since they don’t trust the culture of impunity that has historically protected Kenya’s rich and famous.
Some have argued that the perpetrators of the post-election violence deserve to be taken to The Hague since crimes against humanity characterised last year’s violence.
Supporters of the Kenya tribunal, however, argue that it will not be lenient on the rich and powerful because the tribunal will be constituted of appointees of Kibaki, Odinga, and the Annan team.
The judges at the trial and appeal chambers will include renowned foreign judges as well as a chief prosecutor, deputy prosecutor and registrar selected by the Annan team.
The foreign judges could lend the tribunal much-needed confidence since supporters of the accused fear that Kibaki and Odinga will use the commission’s recommendations for their own political purposes.
Since Odinga appears to have presidential ambitions for the 2012 election, some charge that the tribunal could eliminate his possible challengers. Likewise, others argue that Kibaki may coerce the implicated cabinet ministers into supporting his choice of successor in 2012.
Because the political stakes may be high, others suggest that the Kenya tribunal will never see the light of day because parliament may succumb to political pressures from various corners and not pass the necessary laws.
This is a legitimate concern because the relevant laws must be adopted as constitutional amendments and require a two-thirds majority.
While the special tribunal must navigate some treacherous political waters, it could be a judicial milestone for Kenya and set an example as to how Africa can address its cycle of violence.
Geoffrey Nyamboga is the IWPR staff member in The Hague. The views expressed in this article are not necessarily the views of IWPR.