Thursday, July 30, 2009

Kenyan Government Ditches Idea Of Special Tribunal, Opts for Ordinary Courts and TJRC

The battle that has been raging in the Kenyan Cabinet for the last two weeks over how to address post electoral violence and historical injustices has produced at least one casualty: the Special Tribunal for Kenya (STK). On 30 July 2009, Cabinet resolved to abandon the STK and deploy ordinary criminal courts instead, together with a Truth Commission with 'enhanced powers.' This decision is bound to generate controversy. While ordinary criminal courts merely replace the STK and there should be no concern as to whether the government is trying to avoid prosecutions, the history of the Kenyan judiciary's subservience to the executive leaves much to be desired.

I would not be surprised if this move were interpreted by some as inimical to the fight against impunity to the extent that it vests an important accountability role in a judiciary in which many have little faith. One commentator makes a good empirical argument why local courts are not ideal.It could be argued, that this decision defeats the essence of Waki Commission's recommendation that a Special Court supported by Special Magistrates Courts operating outside the judiciary be created to try post electoral violence suspects. It could be safely assumed that Waki Commission was not comforted by the efficiency record and rectitude of the kenyan judiciary and considered that bypassing it is essential in the current accountability efforts.

Cabinet- which had been agonising for the last three weeks, was divided into various camps on this issue. On announcing this decision, the President noted that while the government does not want to appear to favour impunity, it is important that the country moves towards reconciliation and healing.In this regard, the President noted that Cabinet had considered Five options:

i) The Special Tribunal,

ii) Referral to the International Criminal Court (ICC) under Article 14 of the Rome Statute,

iii) Withdrawal from the Rome Statute under Article 127 and repeal of the International Crimes Act, 2008

iv) The High Court under Section 8 of the International Crimes Act, 2008

v) Establish a Special High Court Division

In his statement, the President goes on to state that:

Cabinet discussed these options extensively in terms of merits and demerits.

The Cabinet took all the circumstances into account, including providing the enabling environment for the ongoing reform agenda.

Cabinet resolved it will not stand for impunity in the pursuit of justice, and the country should pursue national healing and reconciliation. Therefore, the Cabinet:

i) Reaffirmed its commitment to rule of law, and in particular in its commitment to the International Criminal Court and will co-operate and fulfill its obligations to the Court;

ii) Will undertake accelerated and far-reaching reforms in the Judiciary, Police, and investigative arms of Government to enable them investigate, prosecute and try perpetrators of post-election violence locally;

iii) Deal with other forms of impunity including extra-judicial killings, corruption, and unlawful acquisition of public land and other assets;

iv) Propose amendments to the Truth Justice and Reconciliation Act to make the TJRC more representative and effective.

Cabinet is confident that with proper healing and reconciliation, Kenya will not face the events of last year’s post-election violence.

However, the decision to use ordinary criminal courts raises several concerns. The role of the Attorney General, one of the more criticised officers in the land will once again come under scrutiny. The AG is vested with overral prosecutorial powers under s 26 of the Constitution and will - despite the criticisms that he has failed to discharge those duties well in the past - be solely responsible for preparing cases and mounting prosecutions. I suspect that the AG's powers to discontinue any case brought before the courts without giving reasons ( nolle proseque powers) will be cited as problematic.

In discrediting this new move from the government, I see commentators and civil society pointing to the fact that the same courts have been tested and have failed in prosecuting individuals linked to the post-electoral violence. It may be recalled that the only two cases ever brought to Court-that of Jackson Kibor (for alleged incitement to violence) and the 'Kiambaa Four' for their alleged role in the Church fire that killed several people collapsed for various reasons.

While Kenya is a a sovereign state, and bears the primary responsibility to prosecute crimes, international observers in particular the ICC Prosecutor will want assurances that this process is not being created solely for letting suspects off the hook - that it is not a sham process and that it has prospects of dispensing fair and credible justice.
Failure to meet this criteria will invite the ICC, within the Rome Statute's complementarity framework.

It is also being suggested that the Truth Justice and Reconciliation Commission (TJRC) will be strengthened, and its membership made more widely acceptable. It is not clear what additional powers will be vested in it, although the membership issue suggests that the government is alive to the criticisms voiced over some of the commissioners recently appointed to the TJRC (see earlier blog below) and may replace them or expand its membership.

One group that is likely to 'suffer injustice' as a result of the decision to deploy ordinary criminal courts are victims: not so much for the diminished possibility of speedy, fair and credible prosecutions of perpetrators as for the loss of rights granted to them under the proposed Special Tribunal law. The proposed law granted to victims rights akin to those introduced in international criminal law by the Rome Statute of the International Criminal Court (art 68.3): the right to participate at all stages in criminal proceedings and the right to reparations. These rights do not exist in Kenya's criminal law, which follows a common law tradition in terms of which victims of crime have no right to participate in criminal proceedings beyond the role of witnesses. Equally, reparations can only be claimed in a civil proceeding separate from the criminal case. There are no examples that I know of where victims - who are for the most part unaware of this right, and would in any case be unable to afford such an expensive venture - have brought such suits after the conclusion of the criminal case. The matter usually ends with conviction and criminal sentence which may include a fine that goes to the state, and not the victim of the crime. Even where a suspect is responsible for the injury suffered, but the prosecution is unable to prove the case beyond reasonable doubt- therefore no conviction- the court cannot order reparations. The STK would have afforded an opportunity for the Kenyan criminal justice system to begin to grapple with the new dimension introduced in in international criminal law by the ICC. Despite the complexity involved, judging from current practice at the ICC, the opportunity to inaugurate a victim sensitive criminal justice system seems to have been lost ....

Without a clear transitional justice policy, the government's continuing ad hoc approach leaves much to be desired. It remains to be seen whether more light will be shed on these new proposals. What is for sure is that a new stage in this debate has just began...

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