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Obstacles for Special Tribunal

NAIROBI, Kenya, Jan 28 – A draft Bill on the formation of a Special Tribunal for Kenya is already receiving sharp criticism, even as Parliament embarks debate on the Constitution of Kenya (Amendment) Bill 2009 which will pave way for the establishment of the local tribunal.

Stakeholders are punching holes on the set of laws which many of them want amended to guarantee an internationally recognised tribunal.

Experts warn that unless the draft paper is properly examined and amended, the proposed laws governing the special tribunal may make it difficult for its officials to operate once the special court is formed.

The government is rushing to beat the deadlines set by the Waki report on the post election violence which calls for the formation of a local tribunal by March 1, 2009 failure to which the cases will be automatically taken up by the International Criminal Court.

On Tuesday, President Mwai Kibaki and Prime Minister Raila Odinga were at an informal meeting at Parliament buildings to rally support from lawmakers for the Constitution of Kenya (Amendment) Bill 2009 and the Statute for the establishment of the Special Tribunal for Kenya.

Another informal meeting was due to be held on Wednesday to give room for wider consultations.

Justice Minister Martha Karua told ‘Capital in the Morning’ show that she would table the Bill in Parliament later this week.

“I will publish the legislation and then it can be debated in Parliament. So we are actually very near there,” she told host Seanice Kacungira.

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Many are of the view that procedures outlined in the draft Statute for the Special Tribunal are unusual in comparison to other sitting tribunals like the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone.

For instance, the Executive Director of the International Centre for Policy and Conflict Ndung’u Wainaina takes issue with article 30 of the draft which states that a pre-trial judge shall have powers to determine whether there is a trial case to warrant the person accused to stand trial.

“How does this compare with the procedure provided for at article 27, according to which one of the judges of the trial chamber reviews and confirms the indictment ‘if satisfied that a reasonable case for trial has been established’?” he states and questions the difference between a ‘reasonable case’ and a ‘triable case’.

He further argues that apart from the provisions of article 30, which provides that the pre-trial judge can commit the accused to stand for trial or decline the accused for trial, the draft does not mention the pre-trial judge when it refers to the structure of the Chambers.

And while the draft states clearly the nationality of the Prosecutor and the judges, it fails to mention whether the pre-trial judge should be Kenyan or non-Kenyan.

It does not even state how the pre-trial judge will be appointed.

Article 13 (1) stipulates that the Chambers consist of the Trial Chamber and the Appeals Chamber but does not mention the pre-trial judge.

“Would this judge belong to a different jurisdiction?” Mr Wainaina poses.

Appointment and removal of judges and of the prosecutor:

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Mr Wainaina argues that the appointment processes as provided for under articles 13 and 22 (3) are not particularly transparent, and do not provide for external oversight or broader nomination processes.

For the sake of the credibility of the Special tribunal, Mr Wainaina states, it is important not only that the appointments and re-appointment processes be impartial and independent, but also that they be seen to be impartial and independent.

“To this extent, it would be useful that article 13 (2) and (3) specify who has the authority to prepare a list for consideration by the President and the Prime Minister when appointing Kenyan judges,” he states.

Mr Wainaina argues that Article 17 and 25 (3) which outlines procedures of the removal of judges, prosecutor and deputy-prosecutor open grounds for political interference.

The draft states that Judges and the prosecutors may be removed from office for ‘any conduct that may bring the proceedings into disrepute.’

“Who decides and qualifies what disrepute is?” he wonders.

In other tribunals, Mr Wainaina says, removal of judges is an internal judicial procedure. 

He argues that without a substantive deadline on the replacement of those removed, the clause is incomplete and may lead to unnecessary delays.

Appointment and removal of other tribunal officials

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The draft is also faulted for failing to specify the modalities of selection and appointment when recruiting the personnel or considering their status.

Mr Wainaina seeks to establish if police officers and judicial officers appointed to work at the tribunal will keep their seniority.

“This will be particularly important for the staff assisting the prosecutor; will the investigators be required to have a police background?”

Overburdening the Prosecutor?

In his critique document, Mr Wainaina also seems to sympathise with the prosecutor for the special tribunal owing to the fact that he will be required to hear cases of crimes committed between December 3, 2007 and February 28, 2008.

Mr Wainaina is of the view that the prosecutor is likely to be overwhelmed with the cases and could therefore, need a helping hand.

He said; “Under article 36, all these investigations and prosecutions will be led by the Prosecutor. Is there a risk that s/he could be overburdened; will s/he have sufficient and adequate means to perform this enormous task?”

Funding, budget and other financial matters

To guarantee a transparent process and ensure accountability, Mr Wainaina recommends that the Prosecutor be entitled to prepare the budget estimate for his/her office and to independently authorise the disbursement of the funds allocated to the investigations and prosecutions.

Mr Ken Ogeto, a defense counsel at the International Criminal Tribunal for Rwanda (ICTR) and Special court for Sierra Leone on his part concludes that tribunals are very expensive ventures whose funding should never be left at the controls of government.

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“If funded by the government, a tribunal will not be independent. That is why the government should start addressing the issue of funding urgently by approaching international donors,” he said.

The Law Society of Kenya (LSK) on its part wants the constitution amended to allow for the prosecution of a sitting President when the Special Tribunal is established.

A source said LSK is to present its recommendations to the Parliamentary Committee on Justice and Legal Affairs.

Justice and Constitutional Affairs Minister Martha Karua on Tuesday said no government official will be required to step down until charges are preferred against him or her.

“According to the proposals before Parliament, they are going to be required to step down not when they have been named but after investigations and when charges are laid and that is our law even,” she said.

“Otherwise, we shouldn’t expect that merely because somebody has been mentioned and before reasonable evidence is presented that that person will step aside.”


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