Yash Ghai
20 February 2009
(Page 2 of 2)
These principles provide an effective framework for the tribunal. As is well known, the commission was not allowed time to produce more comprehensive proposals. I discuss below how some of its proposals could have been strengthened and suggest a few others to ensure that the spirit underlying the commission's recommendations is better reflected.
IMPROVING ON WAKI?
THE APPOINTMENT AND TENURE OF JUDGES
The ultimate decision on the appointment of the Kenyan judges seems to be left to the chief justice. This would be unfortunate, for in practice the initial and the ultimate decision would be the president's, leaving little discretion for the prime minister or chief justice. To overcome the problem of a chief justice who is widely perceived to be allied to the president, and a Judicial Service Commission which is heavily under the influence of its official members, the rule could be revised to require the chief justice to send the president names of three persons for each chamber, in consultation with other members of the Court of Appeal. Preferably the Kenyan judges should be drawn from senior practitioners, rather than serving judges.
In principle, the role of the president, prime minister and the chief justice should be minimised as each might, in different ways, be deemed implicated in, and share in the responsibility for, the chaos that followed the elections.
The tenure of judges should be specified for the duration of the tribunal. Provision should be made for removal for misconduct, with the determination to be made by a tribunal constituted of Commonwealth judges appointed by the panel. There should also be immunities and other privileges of judges (and other tribunal staff).
FUNDING OF THE TRIBUNAL
Such tribunals tend to be expensive, and the source of funds also affects the independence of the tribunal. No doubt the usual donors and lenders will assist, and it is to be hoped that funds will be sufficient and timely. In particular, the salaries and expenses of foreign judges and staff should be provided from such sources.
LEGAL REPRESENTATION
The commission envisages a defence component of the tribunal but is short on detail. The tribunal should be allowed funds to set up a defence office or provide payment to lawyers chosen by the accused. Unfortunately, no scheme of official legal aid exists, despite a long standing constitutional requirement. Also, in keeping with the internationalisation of the tribunal, foreign lawyers briefed by the accused should be permitted to represent them.
TRIBUNAL'S JURISDICTION
Jurisdiction is restricted to 'serious crimes, particularly crimes against humanity, related to the 2007 election violence'. It is necessary to specify the jurisdiction clearly (at least as elaboration of 'serious crimes', such as murder, rape and other sexual violations, torture, forced disappearances, massive destruction of property - most of these are to be found in Kenya's penal laws). Crimes comprehended by the concept of 'crimes against humanity' are well understood now (and the International Crimes Bill adopts the definition in the statute of the ICC). But that bill is not yet law, and even when it is, its application could be challenged on the grounds of retrospectivity. It is therefore all the more important to clarify that Kenyas's penal laws covering charges of the 'serious crimes' mentioned above are made applicable.
Jurisdiction in respect of persons ('persons bearing the greatest responsibility for serious crimes') also needs to be specified. The tribunal will start with a list of potential accused and the evidence against them collected by the commission, but the tribunal should be free to investigate others. But only the most reprehensible persons should, additionally, be charged, in order to bring the trial to closure within a reasonable time. Kenya cannot afford the luxury of the trials going on and on. Among the suspects are leading politicians and the early determination of responsibility and remedial action are essential for peace, stability and justice. The law on the tribunal should specify that the ordinary process of investigation and prosecution should apply after the tribunal process ends.
EFFECTIVE INTERNATIONALISATION
In Cambodia and other instances of hybrid tribunals, the role of the international community, particularly the UN, has been crucial. The 'international' status of the tribunal comes from its association with the Panel of Eminent African Personalities headed by Kofi Annan. The commission urges that its recommendations should be implemented under the auspices of the panel, and, in addition, gives it specific tasks (as in the appointment of judges and prosecutors). Oversight by the panel should be expressly stated in the law. The panel in turn should be free to use such institutions as it deems appropriate to discharge its responsibilities.
MONITORING AND AUDITS
Monitoring by local and international NGOs and UN audits have played an important role in the accountability of the Cambodian tribunal. This is also important here, and should be provided in the law.
FINAL OBSERVATIONS
It is imperative that the government and parliament get a proper and credible system in place, for a great deal depends on it. Quite apart from dispelling the reputation we have established abroad for violence, impunity and unprincipled politicians, we have also to convince Kenyans of the ability and willingness of political parties to end impunity and to punish those who place the security of the people and the integrity of the country at risk. And we have a chance to learn through the participation of foreign judges, prosecutors and investigators, how a proper criminal justice works. Over the years, as we have so shamelessly politicised our legal system that not only have people lost all confidence in it, but the government and the judiciary have forgotten the professional competence, skills, and integrity necessary for a just and effective legal system.
* Yash Ghai is a professor of constitutional law. He is the head of the Constitution Advisory Support Unit of the United Nations Development Programme in Nepal and a Special Representative of the UN secretary general in Cambodia on human rights.
* Please send comments to editor@pambazuka.org or comment online at http://www.pambazuka.org/.
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