Special Tribunal the best option, says Human Rights Watch

The Kenyan government has reneged on commitments to deliver justice for the victims of post-election violence, an international human rights body has said.

The High Court of Kenya in Nairobi.

The High Court of Kenya in Nairobi.

According to New York based Human Rights Watch, an independent domestic court with international participation is the best option to start establishing accountability. The Kenyan government should immediately adopt legislation to establish the special tribunal.

On July 30, 2009, the cabinet announced that, contrary to previous agreements, it would not establish a Special Tribunal, but would rely instead on a “reformed” national judicial system to investigate and prosecute the perpetrators.

The July 30 announcement is a U-turn from the government’s previous position that the Kenya justice system is deeply flawed and that the regular courts were unlikely ever to bring senior politicians and government officials to face justice.

The recommendation of the Waki Commission on Post-Election Violence, which the government accepted and promised to implement in December 2008, was to establish a Special Tribunal independent of the High Court and with international participation to investigate and prosecute the suspects.

“Bringing justice to these victims is the most urgent test of the coalition government’s willingness to resolve Kenya’s crisis,” said Georgette Gagnon, Africa director at Human Rights Watch. “The cabinet just resoundingly failed that test.”

Georgette Gagnon

Georgette Gagnon

“The argument for a special tribunal has always been that the Kenyan judiciary lacks independence, and the necessary reforms of the entire justice system will take years,” Gagnon said. “The idea that the existing judicial system can deal with the senior politicians and government officials who allegedly incited and organized the killing is an insult to the memory of those who lost their lives.”

As recently as July 3, the Kenyan government agreed with the International Criminal Court (ICC) prosecutor at The Hague that by the end of September it would set out clear benchmarks for a “special tribunal or other judicial mechanism adopted by the Kenyan Parliament.” The government had agreed that if there was no parliamentary agreement on such a mechanism, it would refer the case to The Hague.

Parliament rejected the draft legislation establishing the Special Tribunal in February, and since then, there has been no parliamentary debate, let alone agreement on the issue of how to deal with the suspects.

Kofi Annan, the chair of the panel of eminent Africans who negotiated the National Accord that led to the coalition government, repeatedly extended the time for the Kenyan government to take action on a national solution. On July 9, Annan handed over the Waki Commission’s evidence and its sealed list of suspects to the ICC, a step the commission had recommended in the event that a Special Tribunal was not established.

“After months of delay, the cabinet has finally declared that it is unprepared to carry out the principal task for which the coalition government was formed: to end Kenya’s decades of impunity,” Gagnon said. “The only credible option for the government to gain public confidence is to establish the Special Tribunal immediately or to refer the cases to the ICC.”

On July 27, foreign ministers of the European Union called on Kenya to establish the special tribunal, along with carrying out the broader reform agenda provided for in the National Accord.

“Reforms of the national judicial system are badly needed, but they alone will not bring to account perpetrators of the worst crimes committed during the post-election violence,” Gagnon said. “The US and Kenya’s other international partners should insist in no uncertain terms that, until an independent judicial mechanism is established in Kenya, there can be no ‘business as usual’.”

This week, US Secretary of State Hillary Clinton also supported calls for a Special Tribunal.

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One Response

  1. The biggest challenge to institutional effectiveness in Kenya is the people’s lack of confidence in them. One of the most discredited institutions in kenya is Parliament. Ranging from claims of unreasonable refusal to pay tax, allegations of bribery, and apparent unreasoned shifting of goals on the issue of dealing with PEV suspects, our MPs lack a moral ground to prescribe a solution acceptable to kenyans. it is the same people who have been overeaching themselves with ‘HAGU! HAGUE! HAGUE!’ grandstanding who are now turning around to try and hoodwink kenyans that they are fighting impunity that they are best known to nourish. WE REFUSE TO BE DUPED!

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