Tuesday, September 15, 2009

Releasing Bemba Conditionally: Did the International Criminal Court Judge Err?

The recent decision by a judge of the International Court (ICC) to release Jean-Pierre Bemba conditionally until the conclusion of the case against him has raised some controversy. Bemba, former vice President of the DRC is facing charges of war crimes and crimes against humanity allegedly committed in the Central African Republic. He has been in detention for a just over a year awaiting the commencement of his trial. In a short piece published by the Institute for Security Studies, I address some of the issues in that debate, which implicates various interests: law enforcement imperatives; victims' rights; defendants rights; and the judicial function. Read on

Sunday, September 13, 2009

Kenya To Abandon Use of Police Prosecutors

Police prosecutors, who currently prosecute 90% of criminal cases in magistrates' courts are to be phased out by 2011. Currently, there are 300 police prosecutors, and 73 state counsel nationwide. Speaking at a recent function, the Attorney General states that The strategic plan of the State Law Office 2004-2008 proposed the phasing out of police prosecutors by the end of last year but only 52 out of the expected 150 State counsel were employed since there was an inadequate budgetary allocation to support the phasing out program. These reforms are long overdue. Under the current arrangement, the justice system is unlikely to be able to deal with post electoral violence in an expeditious, competent, fair and impartial manner. Although the AG is constitutionally responsible for all prosecutions, police prosecutors are answerable not to the State Law Office but through the police chain of command. They are also appointed within the same chain, and not by the AG.

Saturday, September 5, 2009

Kenya: Judges Find Their Legs, Challenge President's 'powers' to Create New Administrative Units

Since 1992, Kenyan Presidents (Moi and Kibaki) have blatantly violated the law by creating new administrative units (Districts) without powers and without recourse to popular participation.This actions have been in part pure gerrymandering, and in part a placation of targeted electorate to vote in a particular way. Since power is constitutionally centralised in the Presidency and with it the entire kitty of national resources for him (we haven't had a woman yet) to dole out as he wishes, creation of such units was to convince citizens (who are clearly deluded) that 'power is moving closer to them'. Lacking in resources to put up offices for newly minted administrators (who report to the office of the President indirectly), such units have not brought services closer to the people. It had become routine for ethnic lords to lobby the President for new districts. While resisting true devolution, the Presidency doled out districts at his discretion ... 'rewarding' loyal voters, tribes and clans. More recently, it was reported that President Kibaki had created 20 'sub-provinces'...without consulting coalition partners, political parties, Parliament or the people. Yet these actions have far reaching implications for democracy and how resources will be shared in a future devolved government. It is difficult to fault those who argue that the Presidency is single-handedly attempting to predetermine the future outlook of the country.Under the Districts and Provinces Act, 1992, only 46 out of the current 256 Districts are constitutional and legal. Since the creation of any new districts and provinces requires new legislation, the power to create such units rests with Parliament, and not the Executive.

In a historic judgment
, a High Court judge has effectively declared null and void all districts created in 'road-side declarations' since 1992, in total, 210 districts. A challenge was brought with respect to declaration (made at a public rally) carving Nyamira North District out of the existing (legal) Nyamira District. Is the Kenyan judiciary finally finding its legs? Such a judgment would have been unheard of in days gone by. Judges have been removed for less (in spite of constitutional guarantees of tenure).

The answer to this question has implications for the accountability debate in Kenya. The Waki Commission took the view that the judiciary could not be trusted with crimes arising out of the post electoral violence. The merits f the case notwithstanding, the question is whether Kenya may still have judges who can speak without fear, and to who the weighty task could be entrusted?

The boundaries issue shows that the notion of impunity in Kenya is much broader than 'criminal impunity'. The idea that public officials can act outside the law without challenge is nothing if not impunity. As one contemplates how to deal with post electoral crimes, and impunity linked to gross human rights violations, broader institutional arrangements need to be put in place to address other forms of impunity and to instill greater regard for the rule of law....this can be done in part through current institutional and constitutional reforms.

Wednesday, September 2, 2009

Kenyan TJRC Will Not Meet ICC Complementarity Test: Prosecutions Required

The Kenyan government - at least since the resolution by cabinet to ditch the Special Tribunal - has been holding out the TJRC as a panacea to demands for justice (in particular relating to post election crimes). Some attempted a bizarre spin that the TJRC would 'try' these suspects. The TJRC is not a criminal court, and cannot perform this function.

This said, the government's position raises a crucial question within the context of the ICC, which is still favoured by many (for a range of reasons) to deal with post electoral crimes. The question is whether, if no other mechanism - one before which at least some of the perpetrators can be tried - is NOT established, the TJRC can satisfy the complementarity requirement.

In terms of complementarity, the ICC would only come in to indict and prosecute suspects if Kenyan authorities are unable, or unwilling to bring perpetrators to justice. In her well argued piece, Lydiah Kemunto Bosire argues that deploying the TJRC would not pass muster, and that a prosecutorial mechanism is required. Read Lydia's piece here

Kenya: Special Tribunal Bill Staggers on Day One

The Special Members Bill proposed by Hon Imanyara has run into early problems. As it gathered support of close to 50 MPs, a new lobby of MPs opposed to the Bill has emerged, prompting the Bill's proponents to suspend calling for early recall of the House which is on 6 weeks recess. It could be argued that this developments may as well have dealt the Bill its death blow, although its prospects of becoming law were less than promising from the start. This is a sad development for victims who continue to wait for justice. While the MPs position goes against grassroots support for accountability, the fact that many represent constituencies with large numbers of IDPs and where most of the violence was concentrated carries some weight in the ever evolving saga. The MPs cite the proposed removal of Presidential immunity by the Bill as their reason for opposing it. It is noteworthy the earlier Bill that failed in Parliament did not have this clause, neither does Kenya's International Crimes Act which domesticates the Rome Statute of the ICC.

Al Bashir Invite to Venezuela Presents Fresh Test for ICC, Its Protagonists

The invite extended by Venezuelan President Hugo Chavez to President Omar Al-Bashir to participate at the Second Africa- South America Summit in Venezuela (a state party to the ICC) will provide a new test for the ICC and its Prosecutor in the contentious Al Bashir case. It remains to be seen whether the Sudanese president will continue to exercise caution in his choice of travel destinations over fear of possible arrest. The president failed to turn up for a meeting in Kampala in August....

Drastic Recommendation of the Liberian TRC Sparks Heated Debate in Diaspora

The recommendations made by the Liberian TRC two months are generating heated debate over a range of issues, including which institution - executive or legislature should implement the report. It is noteworthy that one of the main recommendations is to banish from public life key individuals in the political establishment for 30yrs, including President Sirleaf.