The rush to pass a law on the tribunal to try post-election violence suspects is on as the Government is left with only 14 days to sign the Bill.
Members of a Cabinet committee seeking ways to implement the recommendations of the Waki Commission met in Nairobi on Wednesday and announced that they were eager to speed up the law that will create a local tribunal before the December 17 deadline set out in the Waki Report on post-election violence. To beat the tight deadline, the sitting hours of Parliament will be extended to ensure that laws are passed on how to implement both the Waki and Kriegler reports.
The two laws will have to be passed by next Thursday as MPs are scheduled to take a Christmas break on December 18. The Kriegler report was compiled after investigations into last December presidential election results which ODM disputed. The committee working on the implementation of the Waki report met under the chairmanship of Deputy Prime Minister Musalia Mudavadi who said the team will finalise the law by Tuesday and present it to the Cabinet for approval. Other members of the committee are Cabinet ministers Martha Karua, James Orengo, Moses Wetang’ula, Sally Kosgei, Sam Ongeri, William Ruto and Mutula Kilonzo — all members of the Serena negotiating team.According to the Waki timetable, after December 17, the Government will have 45 days within which to set up the local tribunal. This includes the appointment of the three judges in each of the tribunals two chambers; the naming of a prosecutor and setting up a secretariat for the tribunal.
After this, the tribunal must start work within the next 30 days, meaning that it must be sitting by March 1 next year. If this does not happen, a list of 11 suspects believed to have organised or funded the violence will be handed to the International Criminal Court in the Hague. The names of six Cabinet ministers and five MPs are contained in an envelope that was handed over to former UN secretary-general Kofi Annan, who mediated talks to end the two months of post-election violence in which 1,133 people were killed and over 300,000 displaced from their homes.
The draft law being proposed to set up the tribunal has been criticised by two MPs, some lawyers and NGO activists. They claim that under the law, the President could still use his powers to grant amnesty to those convicted by the local tribunal. They also claim that there is no safeguard against the Attorney-General using his powers to take over prosecution of cases from the tribunal and terminating them.
The group was reacting to the proposed law which recommends that, those found guilty of organising the violence be jailed for life and be barred from ever holding public office. Sources said the Cabinet committee studied the draft law that would guide the workings of the tribunal, specifically looking at the rights of the suspects and duties of investigators and the prosecutor. Crimes like murder, destruction of property, rape and incitement will have timelines while reform in the police force and merger between the force and the Administration Police will be continuous. They also agreed to streamline the work of the tribunal staff so that their roles don’t conflict with each other. Once the sub-committee agrees on an implementation formula, it will present the draft law to the Cabinet, which will then forward it to Parliament before it goes on recess on December 18.
The committee deliberated at length on the issue of placing suspects under custody during investigations but decided against the move. However, once investigations are completed and suspects are under prosecution by the tribunal they will be placed under police custody. Suspects appearing before the International Criminal Court are normally detained during the hearing of their cases. Besides the six Cabinet ministers and five MPs, there are some public servants said to be in the Waki list of suspects for their acts of commission and omissions at the height of the violence.
During a press briefing, Mr Mudavadi said: “We have made substantial progress on how to proceed on the Waki report. We have another meeting scheduled for Tuesday where we believe we will be able to finalise and report back to Cabinet on the way forward.” The deputy PM said that although it was not an easy process, he was confident the talks will be successfully concluded by Tuesday. The local tribunal could only be in place if MPs agree to pass the law which was being scrutinised by a group of lawyers and a Cabinet sub-committee.
Mr Mudavadi also said the team had fine-tuned the recommendations on the implementation of Kriegler report that proposes an overhaul of the Electoral Commission of Kenya. He said Ms Karua “is going to ensure the Bill is published immediately so that it is ready for discussion by Parliament next week.” The Bill proposes to replace ECK with an Interim Independent Electoral Commission. Apparently the Government started printing the Bill on Wednesday.
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