NAIROBI, Kenya, Jan 14 – Legal experts say the strict timeline given by the Waki commission to the Kenyan government to establish a local tribunal does not matter as long as the government shows interest in forming it.
Mr Ken Ogeto, a defence counsel at the International Criminal Tribunal for Rwanda (ICTR) and Special court for Sierra Leone said the most important issue is ‘putting in place a clear legal framework for establishing a tribunal.’
“Such that if the government is late for a month, two months or three months as long as there is an indication of serious commitment there shouldn’t be a problem,” he said.
“When Waki set a timeline for this tribunal, he was trying to send a message to the government that there was need for a commitment for the establishment of a tribunal, the most important thing is not the strict adherence to the set timeline,” he said.
In an interview with Capital News, Mr Ogeto said “it is needless to hurry and form a local tribunal that lacks credibility and independence.”
“In the final analysis, what is important is for Kenyans and the international community is that a credible tribunal is set up,” he said.
A report by Justice Philip Waki-led commission gave President Mwai Kibaki and his coalition partner Prime Minister Raila Odinga up to February 28th to form a local tribunal failure to which the International Criminal Court (ICC) will automatically take over the matter to try suspects of the post election violence.
Names of Ministers, politicians and prominent businessmen are contained in a secret envelope which was handed to former United Nations (UN) chief Dr Kofi Annan for safe custody.
President Kibaki and Odinga have already signed a pact that set the stage for the formation of the special tribunal.
What is remaining is for MP’s to amend the constitution by January 29 to entrench the pact which seeks to give the tribunal the legal mandate to operate outside the local courts.
Going by the Waki deadline, the tribunal must be up and running by March 1.
But Mr Ogeto says this “deadline should not worry anyone”.
“What is important is a serious commitment by the government,” he said.
As part of preparations to form the tribunal, parliament last year passed the International Crimes Bill that defines crimes against humanity.
The Bill defines international crimes to mean genocide, war crimes and crimes against humanity and offences against the administration of justice.
This include killing members of a group, causing serious bodily harm, extermination, murder, enslavement, deportation or forcible transfer of a person or group of persons, rape, torture and any other form of sexual violence, racial or ethnic persecution, or taking hostages.
According to Mr Ogeto who has a wealth of experience in two successful tribunals, the most important issue at hand is funding.
He says it is time the government began addressing the issue before time elapses.
Basing his estimates on the ICTR and the Special Court for Sierra Leone, Mr Ogeto concludes that tribunals are very expensive ventures which should not be left at the controls of the government.
“It is time the government started addressing the issue of funding because that is the most critical issue at the moment,” he said.
He cited the ICTR which spends a whooping Sh 200 million dollars annually and the Special Court for Sierra Leone which has been running on an estimated Sh 30 million dollars per year.
“This is not the kind of money a government can afford. It has to get funding from the international community,” he said and cited the UN as the possible donor to the Kenyan tribunal.
Mr Ogeto said unless a tribunal is externally funded, it will never be independent.
“For a tribunal to be independent, it should never depend on funding from its government. It needs proper funding from outside to ensure it remains fully independent and credible,” he said.
“Unless we have an independent tribunal that is free of interference, then the whole exercise will be a waste of time,” he added.