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LSK wants presidential immunity waived

NAIROBI, Kenya, Jan 26 – The Law Society of Kenya (LSK) wants the constitution amended to allow for the prosecution of a sitting Head of State when the Special Tribunal to try perpetrators of post-election violence is established.

This is one of many proposals the LSK presented on Monday afternoon to the Parliamentary Committee on the Administration of Justice and Legal Affairs, at its request.

Other suggested amendments seen by Capital News include the removal of powers vested in the President to give pardon; and the power the Attorney General wields in taking over prosecutions and terminating them.

The LSK argued that these existing provisions could be used to frustrate the work of the Special Tribunal, which is meant to deal with the suspected perpetrators of post election violence some who are said to be Cabinet Ministers, politicians and influential entrepreneurs.

The developments came as Parliament was reported to be gearing up for the enactment of the Statute to set up the Special Tribunal this week.

The LSK however said the enactment of the Statute of the Special Court must be preceded with a constitutional amendment, anchoring the Special Court in the constitution.

All constitutional amendments require a two-thirds majority which is feared difficult to achieve in the highly divided Tenth Parliament.

The select group of lawyers also argued that the creation of such a crucial panel could not be rushed.

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Parliament is in a hurry to beat a Thursday deadline contained in the Waki report, which requires the Statute to be approved by Parliament by then, or else the persons accused of perpetrating post election violence would be sent for trial before the International Criminal Court (ICC) at The Hague.

In a document addressed to the parliamentary committee, LSK argued: “The establishment of the Special Tribunal for Kenya will be one of the most important legislative activities for Kenya. Internationally too, the Special Court is bound to attract great interest, in that for the first time in the history of the Rome Statute, a state party is being asked to fulfil an obligation owed under the Statute to exercise its criminal jurisdiction, over those who have committed international crimes in its territory.”

The lawyers were also opposed to a proposed Panel of Eminent Personalities contained in Article 13 of the Statute. Their role was to oversee the appointment of Judges to the Tribunal.

LSK argued that the panel was “an amorphous body unknown to any law. Reference to this body should be avoided or alternatively, be constituted as a legal personality.”
The society reasoned that reference to a body that does not have legal personality or how it transacts and makes decisions was ‘fraught with danger’. They also questioned how a vacancy – should any arise – would be filled.

The Special tribunal was the making of the Justice Phillip Waki led Commission of Inquiry into Post Election Violence (CIPEV) which produced the Waki report.

Among the Waki recommendations was that a Special Tribunal begin its work 30 days after presidential assent to the Bill enacting the relevant Statute. This was one in a series of deadlines, which if not met, would see the secret list of those suspected to bear the greatest responsibility for crimes falling within the jurisdiction of the proposed Special Tribunal, forwarded to the Special Prosecutor of the ICC for appropriate action.

Article 26 of the Statute proposes to uphold the secrecy of those who stand accused barring disclosure of names of persons under investigations. But the LSK said the names should be made public arguing that it was an ‘unnecessary gag on information, which may inhibit witnesses coming forward and may create an atmosphere where innuendos and rumours will thrive.’

The recommendations signed by LSK Chairman Okongo Omogeni also reckoned that upon completion of the Tribunal Report, it be presented to Parliament through the Committee on the Administration of Justice and not to the President and Prime Minister.

The LSK is a 6,000 member body established by the Law Society of Kenya Act. One of its statutory objectives is to assist the Government and the courts in all matters affecting legislation, as well as the administration and practice of the law in Kenya.

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