Human Rights Watch Letter On Special Tribunal Loopholes

TO-THE SERENA MEDIATION TEAM

Re: Draft Statute for the Establishment of a Special Tribunal

Human Rights Watch has consistently emphasized the importance of accountability for the human rights violations committed following the Kenyan polls in December 2007. Our researchers documented several patterns of serious human rights abuses, including extrajudicial killings and excessive use of force by the police, and ethnic-based attacks and reprisals by militia groups on both sides of the political divide during the post-election. As a signatory to the Geneva Conventions and to various human rights treaties, and as a member of the International Criminal Court, Kenya is obligated to bring to justice perpetrators of serious international crimes.

Human Rights Watch welcomed the report of the Commission of Inquiry into the Post-Election Violence (CIPEV), and congratulates the government of Kenya on its intention to introduce a bill establishing a Special Tribunal with jurisdiction over the most serious crimes committed in the post-election violence, consistent with the CIPEV’s recommendations.

We continue to urge the government to address wider human rights abuses in Kenya. Promptly constituting the special tribunal will be an important step forward, and we believe that ensuring its effectiveness will contribute significantly to ending the wider problem of impunity in Kenya. As a national court with jurisdiction to try serious international crimes, the special tribunal will also make an important contribution within the developing system of international justice.

The tribunal’s success will require close attention to credible, independent, and impartial investigation and prosecution, rigorous implementation of internationally recognized standards of fair trial, and appropriate penalties in the event of convictions. It will also require that the tribunal’s jurisdiction reach the crimes and perpetrators most representative of post-election violence.

To meet these challenges, it is essential that the tribunal be provided with a sound framework. As a human rights organization with extensive experience both in documenting human rights violations in Kenya and in monitoring and assisting national and international tribunals, Human Rights Watch would like to highlight a number of concerns with provisions of the draft statute prepared by the government that may undermine its effectiveness.

Human Rights Watch’s most pressing concerns are elaborated below, but the following list, long as it is, is not exhaustive:

Relationship to Kenyan law

Drawing on Kenyan criminal law and procedure. As discussed in more detail below, and as partly envisaged by the draft statute, the special tribunal should be set apart from other Kenyan criminal courts by its autonomy, its focused jurisdiction over certain crimes committed by certain persons during a certain period, and by its complement of international staff. The tribunal may also bring important innovations, including, as provided for in the draft statute, victim participation, a Defense Office to increase the protections afforded defendants, and a victim and witness protection unit. In doing so, the tribunal should draw on the experiences of other international and mixed international-national tribunals prosecuting serious international crimes.

The tribunal, however, should also comprise part of the ordinary Kenyan criminal justice system and draw on Kenyan substantive and procedural law, including, as discussed below, the recently adopted International Crimes Bill.

Doing so will make clear its relationship to other Kenyan authorities on which it will rely in its work, including prison and police authorities. It will ensure full protection of fair trial and other rights under Kenyan law to the defendants appearing before it. It will increase the tribunal’s efficiency by providing a sound basis for the tribunal’s own rules of evidence and procedure. And if the procedures of the special tribunal are similar to those of the ordinary Kenyan criminal courts, Kenyan judges, counsel, and other judicial staff working for the tribunal will be able to bring their experience directly back to the ordinary courts increasing the capacity of Kenyan institutions to provide accountability.

The draft statute should provide that the special tribunal is to be bound by Kenyan law except to the extent provided otherwise by its statute. In developing its rules of procedure and evidence, the statute in article 16 should instruct judges to be guided by Kenyan law in addition to international criminal law and practice.

Relationship with existing Kenyan courts.

The draft statute currently provides the tribunal with exclusive jurisdiction over crimes under the statute. As indicated above, however, the tribunal will not have the capacity to prosecute all perpetrators. Providing the tribunal with exclusive jurisdiction could thwart or delay the efforts of the ordinary Kenyan courts to bring these other perpetrators to justice. Instead, the statute should provide for concurrent jurisdiction, while giving the tribunal primacy over cases within its jurisdiction. A clear procedure should be provided for transfer of cases between ordinary Kenyan courts and the tribunal.

Anchoring the tribunal in the constitution. The Kenyan constitution permits parliament to establish courts subordinate to the High Court. To ensure the special tribunal’s independence, and as recommended by the CIPEV, it is essential that the Kenyan constitution be amended to permit creation of a special tribunal that is independent of the High Court, and the decisions of which are not subject to appeal to any other body. The draft statute appropriately provides for an appeal chamber within the tribunal. Any process of constitutional amendment should additionally ensure that the tribunal is fully able to exercise its jurisdiction free of constitutional challenge.

Jurisdiction

Persons most responsible. As recommended by the CIPEV, the special tribunal should focus its attention on a limited pool of perpetrators. The number of perpetrators of crimes during the post-election period likely runs to the thousands; without limiting the tribunal’s jurisdiction, the tribunal will be quickly overwhelmed by its caseload. Prosecution of lower level perpetrators should remain the responsibility of the ordinary Kenyan courts.

We recommend, however, that rather than use the language “persons bearing the greatest responsibility” as recommended by the CIPEV, article one of the statute should limit the tribunal’s jurisdiction to “persons most responsible.” According to the United Nations Secretary-General, the term “persons most responsible” includes those in the political or military leadership, but would also comprise others down the chain of command who may be regarded as “most responsible” judging by the severity of the crime or its massive scale. While the primary focus of the tribunal should be senior leaders-the individuals most often beyond the reach of ordinary courts and whose prosecution can expose the structure of criminality that led to the commission of widespread crimes-defining the tribunal’s jurisdiction by reference to “persons most responsible” would permit a degree of flexibility in pursuing lower ranking officials if necessary for the overall prosecutorial strategy.

Time period.

The draft statute presently provides in article seven for the tribunal’s jurisdiction over crimes committed during the “period beginning on 1st December 2007 and ending on 28th February 2008, or crimes committed on any earlier or later date and which are connected in accordance with the principles of criminal justice and are of a nature and gravity similar to those crimes committed between 1st December 2007 and 28th February 2008.” The broad wording of this provision leaves room for considerable argument as to what falls within the tribunal’s jurisdiction, and, if given the broadest possible interpretation, could stretch the tribunal’s caseload beyond its capacity. We suggest that to retain some flexibility, the statute gives the tribunal itself the power to extend its period to “Crimes under its statute, of a similar nature to and connected with those committed between 1 December 2007, and 28 February 2008,” with the tribunal itself in those cases naming the time periods to which its jurisdiction will extend.

Impartiality and national reach.

Although the draft statute provides for the tribunal’s jurisdiction over the entire territory of Kenya, the preamble of the statute should explicitly refer to the need for impartial investigation and prosecution of crimes committed by all parties to the post-election violence in any of Kenya’s eight provinces. For example, crimes committeed in Mt. Elgon during the above time frame were most certainly related to the election, even if the genesis of the instability there preceded the 2007 elections.
Substantive offenses

International Crimes Bill.

As presently drafted, the statute of the special tribunal lacks precision in its definition of crimes. Of particular importance, “gross violations of human rights” (article 3) does not correspond to any clearly defined crime under international law, and, as defined in the draft statute, broadens the tribunal’s jurisdiction to include almost any serious crime. The focus of the tribunal-which will have limited prosecutorial and judicial resources-should be more narrow.

We understand that the International Crimes Bill has recently been adopted by parliament. This bill implements the Rome Statute of the ICC in national law, including by making genocide, crimes against humanity, and war crimes-as those crimes are defined by the Rome Statute-substantive offenses under Kenyan law and subject to prosecution by Kenyan authorities.

We urge the Kenyan parliament to link the International Crimes Bill to the special tribunal’s statute, and to define the tribunal’s subject matter jurisdiction in part by reference to war crimes and crimes against humanity as defined in that bill. Tthe statute should direct the judges to interpret the definition of crimes in accordance with international law, including the Rome Statute.

However, given that there is no indication that genocide was committed during post-election violence, there is no need to include the crime of genocide within the tribunal’s jurisdiction. Instead, it would make more sense to include other offenses. While the tribunal should focus primarily on serious international crimes, the statute’s drafters should consider including within the tribunal’s jurisdiction other offenses defined under Kenyan law, such as murder and sexual violence crimes, as needed to permit full prosecution of those most responsible for post-election violence.

Torture.

As a major international crime, torture should also be included in the tribunal’s jurisdiction, taking the definition from the Convention Against Torture, that is, any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Individual criminal responsibility.

Article six of the draft statute makes available certain theories of individual criminal responsibility that go beyond direct commission of the crime. Such theories, including command responsibility and other forms of participating in planning and execution of the crimes, are essential where trial of leaders is anticipated. To ensure that all appropriate theories of criminal responsibility are included and are defined in a manner consistent with international law, we recommend that the statute refer to article seven of the International Crimes Bill, which will incorporate the principles of individual criminal responsibility and the responsibility of commanders and other superiors found in articles 25 and 28 respectively of the Rome Statute.

Judges and prosecutors

Commonwealth judges. An impartial and competent bench is a key fair trial right under Kenyan and international law. Transparency in the selection of judges will be of utmost importance.
We welcome the qualifications for appointment of all judges set out in article 13. Prior experience in criminal practice-whether in managing complex criminal trials in their national jurisdictions or experience before international criminal tribunals or mixed national-international tribunals- will be a particularly important qualification.

We also welcome provision in the draft statute for the tribunal’s chambers to be composed of a mix of international and national judges. International judges can contribute positively to the effective and impartial functioning of the tribunal. Consistent with the recommendations of the CIPEV, article 11 of the draft statute should provide for the non-Kenyan judges to be drawn from the Commonwealth. This will help to ensure a common legal background among the judges, adding to the efficiency of proceedings.

Investigative and prosecutorial resources.

Investigation and prosecution of serious crimes can be extremely complex. Demonstrating the systematic and widespread nature of crimes and the responsibility of perpetrators-who may have been leaders far removed from crime scenes-can pose tough challenges. International standards require prompt, thorough, independent, and impartial investigation and prosecution. The special tribunal must be equipped with adequate investigative and prosecutorial resources to meet these challenges and responsibilities.
We welcome the CIPEV’s recommendations and provision in the statute for international staff to work alongside Kenyan staff within the prosecutor’s office. Like international judges, international prosecutors and investigators can bring helpful expertise to the tribunal and complement the knowledge and experience of Kenyan staff. As currently provided for in the draft statute, we recommend that the prosecutor be non-Kenyan, and that, as recommended by the CIPEV, that the head of investigations and not less than three other members of the investigation team also be non-Kenyan. The draft statute should provide that the prosecutor have extensive experience trying criminal cases, and that investigators have experience in their own national jurisdictions, preferably in conducting police investigations.

Although the special tribunal should have sufficient personnel to carry out its own investigations, the tribunal’s personnel should have access to evidence collected prior to the tribunal’s establishment in cases that are subject to its jurisdiction, including investigative material, witness statements, and testimony collected and recorded by the CIPEV. The draft statute should provide for this transfer of evidence, and its admissibility and weight in proceedings before the tribunal should be subject to a determination by the tribunal’s trial chamber pursuant to Kenyan and international standards on the collection of evidence.

Additional chambers. Further consideration should be given to the provision in the draft statute on the creation of additional chambers. A better approach would be to appraise the likely caseload of the tribunal and equip it with sufficient capacity from the outset, including by drawing from the experiences of staffing international and mixed international-national tribunals. Selection of judges and professional judicial staff after the start of operations could create delays in proceedings.

Pre-trial judge. The draft statute provides in article 25 for pre-trial proceedings to be conducted by a pre-trial judge. While analogous pre-trial proceedings analogous to those set out in article 25 are conducted at the ICC, as far as we are aware, such proceedings are not provided for in ordinary Kenyan criminal procedure. If these proceedings are retained, specific provision should be made in the statute for the appointment of a chamber of pre-trial judges, rather than a single pre-trial judge, reflecting the same balance between international and national judges and qualifications as the trial and appeals chambers.

Terms of service. Given the nature of the proceedings the tribunal will conduct, judicial terms of three years are likely to be too short for the tribunal to carry out its mandate in full. We recommend that the tribunal’s mandate be open-ended, subject to review. Terms of service for judges should be open-ended, as currently provided in the draft statute for other tribunal staff. We would also recommend that provision be made for the tribunal to appoint a president from among its judges to assist in its management.
Fair trial rights and penalties

Rights under Kenyan and international law. While the draft statute provides a list of rights of suspects and accused in articles 31 and 32, the statute should explicitly provide for the applicability of all fair trial rights under Kenyan and international law, including the International Covenant on Civil and Political Rights.

Persons under the age of 18. The statute should exclude persons under the age of 18 from its jurisdiction, consistent with the practice of the International Criminal Court.

Trials in absentia. The draft statute should not permit the conduct of trials in absentia. Trials in absentia violate international law, which stipulates that a defendant should be present at his own trial.

Death penalty. We welcome provision in the draft statute for imprisonment as the primary penalty on conviction, and agree that terms of imprisonment should be determined with reference to international practice. Kenya should in any case abolish the death penalty immediately.

Barring commutation or pardon of sentence. The draft statute should bar commutation or pardon of sentences handed down by the special tribunal by any external authority to avoid political interference with its decisions.

Additional suggestions

Preamble.
The law would benefit from a preamble that refers to the need for and aims of the special tribunal. In addition to our earlier recommendation that such a preamble stress the tribual’s impartiality and national reach, a preamble might include the following references:

That it is established in accordance with the recommendations of the Commission of Inquiry into the Post Election Violence (CIPEV) led by Justice Waki;

That it is independent and autonomous and not subject to the control or direction of any other authority;
That its aim is to prosecute those most responsible for serious international crimes committed in connection with the 2007 Kenyan general elections;
That it is “anchored” in Kenya’s constitution;
That it will apply both Kenyan and international criminal law by virtue of the enactment of the International Crimes Bill 2008, making the provisions of the Rome Statue applicable in Kenyan domestic law;
That the tribunal will receive the full support and cooperation of the government of Kenya in its establishment and subsequent operations.

Cooperation. The cooperation of Kenyan authorities will be critical to the tribunal’s success. In addition to including references to cooperation in the preamble, the draft statute should compel the government to cooperate with the tribunal on a number of important issues, including the identification and location of persons; the taking of testimony and the production of evidence; the service of documents; the arrest or detention of persons; and the surrender or the transfer of the accused to the tribunal.
Immunities, commencement date of the tribunal, and expenses. Provision should be made in the tribunal’s statute for immunities of the tribunal and its officials, for determination of the tribunal’s commencement date following the enactment of its statute, and for the court’s expenses.

Resources. The tribunal should be provided with adequate resources from both national and international donors, to include the expense of all its operations, of investigation, of creation and to ensure its independence. It should not be forced to continually beg for funding from the government.
These suggestions are made to the government of Kenya in the hope that the draft law can be made more effective before it is passed by Parliament. Once the tribunal is established, other areas key to its effectiveness will need to be addressed in practice. These include implementation of the statute’s critical provisions on witness protection.

It is in the interests of all Kenyans that the country’s history of impunity on political violence be confronted. It is also in the interests of peace and stability in the country and the region. Kenya has a unique opportunity to take the lead in creating a domestic institution-with international assistance-that could deliver justice where previous attempts have failed. Additional efforts through the ordinary criminal courts will be required to bring full accountability.

Human Rights Watch remains committed to assisting the government of Kenya in ensuring that the perpetrators of human rights violations are held to account.

Yours sincerely,

Georgette Gagnon, Africa Director

Richard Dicker, International Justice Director

CC: Hon Raila Odinga

Hon Mwai Kibaki

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