Yash Ghai
20 February 2009
opinion
With the 'Waki' Commission of Inquiry into Post-Election Violence identifying several politically-prominent figures in Kenya, Yash Ghai argues that the Kenyan people will increasingly regard their government as illegitimate if those responsible are not effectively brought to task. Contending that some form of international arbitration is required to make up for the deficiencies of Kenya's domestic courts, Ghai considers the recommendations of the commission and the composition of a special tribunal, arguing that these will represent a key means of developing ordinary Kenyans' trust and restoring the country's international reputation.
The 'Waki' Commission of Inquiry into Post-Election Violence was clear that an essential component of the process for the return to a peaceful and democratic Kenya, where the rule of law is respected, is the trial of persons with most responsibility for the violence. It seems that the list of persons prepared by the Waki Commission for further investigation includes some who are in politically powerful positions, even in the cabinet. Many Kenyans are outraged that these persons still hold important posts and may continue to do so in the future. The ethnic violence that followed the 2007 elections traumatised the whole nation, threatened its unity and led to senses of deep grievance. If those responsible are not brought to justice, the impunity which has characterised Kenya's political and public life will continue unabated, and the sense of betrayal and of the illegitimacy of the government will become acute.
A compelling reason for an international court, or at least a hybrid court (with significant participation of international judges and prosecutors) for the trials is the weaknesses in the national legal and judicial system. The Kenyan system has the appearance of independence, competence, and effectiveness (at least when compared to Cambodia). But the Waki report points to the lack of political will to prosecute persons in high authority for serious offences, whether illegal appropriations of land, embezzlement of astounding sums of money, incitement to ethnic hatred and violence and killings. The initiation and termination of prosecutions are politically driven, so that when private groups have tried to bring highly placed suspects before the courts, the attorney general has terminated the trials. The judiciary has the reputation of extreme corruption, and subservience to the government. The Commission on the Goldenberg scandal describes how the courts have been used to launder stolen public funds and to whitewash perpetrators of theft. The Waki Commission says, 'nothing short of comprehensive constitutional reforms will restore the desired confidence and trust in the judiciary'. [p. 463]
Added to the political manipulation of the legal and judicial process are deficiencies in the system, as the attorney general himself admitted to the Waki Commission. Particularly weak is investigative capacity; the commission cites many cases of prolonged delays in investigations. Capacity for the conduct of prosecutions is also weak. The commission concluded, 'In view of the lack of visible prosecution against perpetrators of politically related violence, the perception has pervaded for sometime now that the Attorney General cannot effectively or at all deal with such perpetrators and this, in our view, has promoted the sense of impunity and emboldened those who peddle their trade of violence during election periods, to continue doing so'. [p. 455]
The commission has provided a number of carefully considered principles for the structure and jurisdiction of the Special Tribunal. If the legislation does not fully implement them, then the commission's conditions will not have been met and the list of suspects could be handed over to the Special Prosecutor of the International Criminal Court.
This article discusses the recommendations of the commission. Unfortunately, the bill for the tribunal has still not been published, so near the commission deadline for its enactment. The law is not a matter for horse-trading between politicians but of the greatest public interest, and full public discussion of the bill before parliament passes it is essential.
RECOMMENDATIONS FOR THE DESIGN OF THE SPECIAL TRIBUNAL
A SELF-CONTAINED TRIBUNAL
Given the past record of the prosecution and judiciary, the commission recommends that the Special Tribunal should be detached from the other courts and the attorney general. They will have no jurisdiction in relation to the proceedings of the tribunal, which will have its own judges, prosecutor and investigators. Appeals from the tribunal's Trial Chamber would go to the Appeal Chamber (also part of the tribunal).
INTERNATIONALISATION
A majority of judges would be foreigners, drawn from the Commonwealth, and appointed on the nomination of the Panel of Eminent African Personalities by the President in consultation with the Prime Minister. The prosecutor would be appointed on the nomination of the panel in the same way, and presumably be an outsider qualified to be a judge in a Commonwealth country. Reflecting its hybrid nature, the tribunal will have two Kenyan judges, one presiding over the Trial Chamber and the other the Appeal Chamber. They will be appointed by the president in consultation with the prime minister, both acting on the advice of the chief justice (which means they must accept that advice). The hybrid nature is also reflected in the jurisdiction of the tribunal, covering both Kenyan penal law and international crimes.
INDEPENDENCE
The tribunal will have authority to recruit and control its own staff, which will consist of Kenyan and international persons. Investigations will be conducted under the direction of the tribunal's prosecutor. The head of investigations and at least three other members of the team will be non-Kenyans 'so as to provide an independent approach to the investigation function of the Tribunal'. Similarly, having judges and the prosecutor from outside and detached from local politics will enhance independence. The tribunal will take custody of all investigative material and witness statements and testimony collected and recorded by the commission. The commission seeks to ensure non-interference with the tribunal by requiring that holders of public office (including civil servants) who are charged by the tribunal shall be suspended from duty.
CONSTITUTIONAL STATUS
The commission wants the tribunal to be 'insulated against objections on constitutionality' by anchoring it in the constitution. It is no doubt concerned that the typical Kenyan ploy, under which culprits in conjunction with lawyers, judges, and the government, conspire to derail important cases or processes, should not be available to subvert the tribunal. The provisions to be entrenched must be carefully drafted, not merely to give the tribunal constitutional status, but to ensure its independence, internationalisation, detachment from the ordinary court and legal processes (specifying, for example, that the attorney general's powers of investigation and the initiation and termination of prosecutions do not apply in relation to the tribunal). There may also be questions over the retrospective application of the international crimes legislation (dealt with later) although some offences there were also effectively prohibited in Kenya (like torture).
GOOD FAITH AND INTEGRITY
The Special Tribunal is a hybrid, but with a clear twist. In Cambodia if the government were to subvert the purposes of the Extraordinary Chambers in the Courts of Cambodia (ECCC), the UN would withdraw. By contrast, if the local process was subverted, the cases would be 'internationalised' by reference to the International Criminal Court (ICC). It remains to be seen whether, given Kenya's political culture, this threat will be sufficient to ensure an honest process at home.
SUPPORTING ENVIRONMENT
The commission recommends three measures to create a supportive environment for the tribunal. To lay the legal foundation for its jurisdiction over crimes against humanity, it wants the speedy enactment of the International Crimes Bill, which was gazetted in April 2008 and appears to have languished since. Secondly, it wants the Freedom of Information Act enacted 'forthwith' so that both state and non-state actors can have full access to information leading to the arrest and prosecution of persons responsible for gross violations of the law. Thirdly, it wants the operationalisation of the 2006 Witness Protection Act to ensure protection for informers and witnesses.
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