Election Massacre: We need two Tribunals

The perpetrators of the post election massacre are having sleepless nights. They know their days are numbered and soon will have to face justice, either here or at The Hague. If Kenya wants to make absolutely certain that no one escapes the long arm of the law, then we should have the conspirators behind the bloodbath tried at the ICC and the dogs of war who actually committed the murders, tried locally. Yes, it is possible to kill the two birds with a single stone. All that Kenyan leaders need to do is to make sure that we deliberately fail to meet the Kofi Annan August deadline so that his envelope can eventually land on Louis Moreno-Ocampo’s desk.

Very soon Minister Mutula Kilonzo will be meeting Moreno-Ocampo to familiarize himself with the international criminal procedures. He will obviously not travel all the way to Holland just to enjoy a cup of tea with the ICC prosecutor. The two will obviously be discussing the prosecution of the people in Kofi Anna’s envelope. It is not difficult to imagine the areas in which the two will see eye to eye and the areas in which they are bound to end up poles apart. 

If there is one thing in which everyone agrees – everyone including Raila Odinga, Mwai Kibaki, Mutula Kilonzo, Martha Karua, Gitobu Imanyara, Kofi Annan, Johnnie Carson and Barack Obama –  it is the fact that the culprits of the massacre must face the law.  All these people agree that the butchers of December 2007 must never be allowed to get away with the crimes they committed against innocent Kenyans. The areas of disagreement seem to concern only the timing of the trials. Local leaders want the trials to be conducted expeditiously; and the foreigners want the formal legal process initiated even more expeditiously. Immediately! In fact right now! 

Kenyans feel the same way but Mutula Kilonzo’s hands are tied. He cannot initiate the trials without the special tribunal. But to establish the tribunal, the Constitution has to be amended and a special Statute has to be legislated. Martha Karua tried to do so at the beginning of the year but she failed most miserably because Gitobu Imanyara proved to be a smoother operator in Parliament than the Kenyan Iron Lady. 

He organized MPs in such a formidable manner as to create deep rooted doubts against Government intentions. Karua’s two bills died before they were born. Unfortunately Mutula Kilonzo cannot establish a tribunal in Kenya without the Karua Bills. He simply cannot reinvent the wheel. So, most likely, he will not meet Annan’s deadline and The Hague will have no choice but to initiate their cases against the criminal conspirators that caused the unforgettable scenes of carnage, slaughter and massacre in Kenya at the end of last elections. It is believed that some of these schemers sit in the current coalition cabinet and they come from both PNU and ODM. It will therefore be a blessing in disguise to have them tried at The Hague where they have no influence what so ever.

 This time Mutula will have to use his entire gift of the gab to convince MPs that there was no ulterior motive in the Karua Bills. The first one, The Constitution of Kenya (Amendment) Bill, 2009, was so important that no special tribunal can be established in Kenya without it going through Parliament. If the Bill went through as planned by Karua, the special tribunal would have had exclusive jurisdiction in accordance with the Statute, to investigate, prosecute and determine cases against persons responsible for (a) genocide, gross violations of human rights, crimes against humanity; (b) such other crimes as would have been specified in the Statute, committed in Kenya in connection with the December, 2007 General Election. 

Secondly, the Bill made sure, for the avoidance of doubt, the provisions of the Statute were not deemed to be inconsistent with the Constitution. Thirdly, the Bill made sure that if there were any laws in conflict with the Statute, the provisions of the Statute prevailed and lastly the Bill made sure that the emended Constitution ceased to have effect upon the expiry of the Statute. In the Memorandum of Objects and Reasons Martha Karua stated that the Constitution Amendment Bill was the result of the deliberations of the National Accord and Reconciliation Committee formed after the political crisis triggered by the disputed elections held on 27th December, 2007. 

She explained the Committee held its deliberations under the auspices of the Panel of Eminent African Personalities comprising the former Secretary- General of the United Nations, His Excellency Kofi Annan, His Excellency Benjamin Mkapa, former President of the United Republic of Tanzania and Her Excellency Madam Graca Machel.The Bill was only seeking to implement the recommendations of the Commission of Inquiry into Post Election Violence submitted to the President on 16th October, 2008, popularly known as the Waki Report. 

Karua also explained that the Constitution amendment Bill was proposing to introduce a new section 3A to anchor the Statute establishing the Special Tribunal for Kenya in the Constitution in order to insulate the Tribunal against objections on grounds of unconstitutionality. There is no way in which Mutula can present a better legal argument except to explain to MPs that Martha Karua was right and the Constitution still needs to be amended to establish a special local tribunal. 

Karua’s second Bill, rejected by Imanyara and his powerful group in Parliament, The Special Tribunal for Kenya Bill, 2009, will have to be presented to Parliament the second time by Mutula Kilonzo. In the Memorandum of Objects and Reasons, Karua explains that this Bill  was also seeking to implement the recommendations of the Commission of Inquiry into Post Election Violence submitted to the President on the 16ht October, 2008 also known as the Waki Report. 

The Bill proposed the establishment of a Special Tribunal for Kenya which would have sought accountability against persons bearing the greatest responsibility for crimes,particularly crimes against humanity, relating to the 2007 General Elections in Kenya.She explained that the Bill set out the procedure for the appointment of judges of the Tribunal, the Prosecutor, Registrar, Defence counsel and Special Magistrate. It also specified the Crimes to be prosecuted by the Tribunal. 

The Bill also contained financial provisions in respect of the Tribunal and provided for the sources from which the funds would have been drawn. Clause 59 provided for the establishment of that. Clause 60 required annual estimates on the revenue and expenditure of the Tribunal to be prepared prior to the commencement of the financial year of the Tribunal. Clause 64 required the Tribunal to prepare and submit a report on its work to the President and the Prime Minister. The Minister was required to table the report of the Tribunal before the National Assembly within fourteen days of its submission. 

Mutula is not likely to change Martha’s Bills in any way, shape or form and the sooner he brings them back to Parliament the better it will be for everyone. This time MPs will probably prove to be wiser, shrewder and more astute with enough intelligence not to allow themselves to be blindly swayed by Gitobu Imanyara who obviously has an axe to grind in this matter.