Sensing that there could be no political will to deal decisively with suspected perpetrators of the post-election violence, Justice and Constitutional Affairs minister Mutula Kilonzo now says that influential Party of National Unity (PNU) bigwigs are misleading President Mwai Kibaki on the issue of a local tribunal in a bid to scuttle any efforts to deal with the problem domestically.The individuals, he said, have misled the President over a wide range of issues particularly that which deals with presidential immunity from any form of prosecution while in office.Mutula attributed the stalemate in Cabinet on the establishment of a local special tribunal to deal with crimes committed during post-poll chaos to powerbrokers within PNU who are advancing their vested interests in the pretext of protecting the integrity of the office of the President.According to the minister, President Kibaki fully backs the move to strip him of the privilege of immunity from prosecution incase he is implicated in the post-election violence that resulted to the killing of at least 1, 300 people, displacement of 350, 000 others and wanton destruction of property.He avers that Kibaki is aware that the International Crime Act which domesticated the Rome Statue that established the International Criminal Court (ICC) has no room for presidential immunity.
The Cabinet has been deadlocked on whether or not the President Kibaki should retain the privilege of immunity from any civil or criminal litigation with regard to crimes committed during the poll-election violence most of which touch on gross violation of human rights.A group of ministers allied to PNU have vehemently opposed the proposal on grounds that the country could easily degenerate into anarchy should the president be exposed to criminal or civil litigation.The Ministers who include Kiraitu Murungi (Energy), John Michuki (Environment), Moses Wetangula (Foreign Affairs) and Chirau Mwakwere (Transport) argue that stripping the president of the constitutional powers will be tantamount to a breach of country’s sovereignty.But yesterday, Mutula lashed out at the Ministers for misleading the President due to political, tribal and sectarian interests even when the law is very clear on the issue.“Kibaki is very understanding but he is being misled by PNU operatives. It is the PNU coalition where I am the Secretary General which is objecting to stripping Kibaki of presidential immunity from prosecution,” said Mutula while addressing a Media Owners Association (MOA) luncheon at a Nairobi hotel yesterday.
He said the Rome Statue, which Kenya is party to, does not grant any person immunity from prosecution irrespective of his or position.“Kibaki signed the International Crime Bill into law in January this year which domesticated the Rome Statute without issues of sovereignty coming up. This means the President allowed himself to be subjected to prosecution both locally and internationally if implicated in the atrocities during the electoral mayhem hence the issue of presidential immunity should not arise,” said Mutula.Mutula who chairs a ministerial sub-committee mandated to review the bill on the establishment of the local tribunal to try the suspected perpetrators of the post-election violence maintained that his team will not relent in the quest to ensure that the President is stripped of the constitutional privilege of immunity against prosecution incase he is linked to the crimes committed during the post-election violence or held responsible under the principle of command responsibility.This position is also shared by Prime Minister Raila Odinga’s Orange Democratic Movement (ODM) in its push for a fair and credible judicial process.
Other members of the committee include Ministers James Orengo (Lands) Moses Wetangula (Foreign Affairs) and Attorney General Amos Wako.Yesterday, Mutula said the committee has resolved to adopt the proposals in the current form and even explore further ways of cushioning the tribunal from political manipulation in order to meet international standards.The Constitution of Kenya Amendment Bill and Independent Special Tribunal Bill has clauses that strip Attorney General of his powers to terminate prosecution through nolle prosequi and bars the Chief Justice from transferring judges unilaterally.The team has come up with a raft of options among them Kenya contemplating to withdraw from the Rome Statute and repeal the International Crime Act.Despite still opposition from some ministers and MPs, the team says a local special tribunal which meets international standards was the best option to deal with crimes committed during the post-election violence.It recommends an upper tier tribunal to handle international crimes such as crimes against humanity and a lower one for crimes punishable under the Kenya Penal code such as rape and murderIn the event that Kenya decides to withdraw from the Rome Statute, it will join the league of failed states which have failed to prosecute crimes.However, the minister warned even if Kenya withdraws from the Rome Statute, the masterminds of the mayhem can still be arrested and prosecuted by any country under the international customary law.The committee also recommends the High Court or a Special Division of High Court to handle the crimes committed during the post-election violence.With Kenyans’ confidence in the country’s criminal justice system waning significantly, this route may not guarantee justice to the victims of the chaos.If all these fail, the Kenyan case will be taken over by the International Criminal Court at The Hague, Netherlands for investigation and subsequent prosecution.The committee will table the proposals in the Cabinet on Monday next week for discussion.
However, Mutula expressed optimism that the government will establish a special local tribunal to handle the crimes committed during the post-poll chaos in order to end impunity which continue to haunt the country.“Kenya’s hope lies in establishing a local special tribunal. Kenyans must push leaders to take this difficult decision.A country where impunity thrives is not good for anyone including those practicing it. Let the masters of impunity not hide in government, churches, region or tribal cocoons,” charged Mutula.The minister used the opportunity to condemn MPs for shooting down a bill seeking the establishment for a local tribunal to try the architects of the post-poll chaos saying it was a demonstration of impunity at its best.“The rejection of the bill even by ministers who were part of the Cabinet that approved it shocked the nation. But the greatest shocker was Parliament which had in the previous year approved the National Accord and adopted the report of the Waki Commission which formed the basis of the special tribunal.For Parliament to turn around and go against the spirit of its earlier decision and worst still go against the will of the people is itself impunity of the most unholy kind,” noted the minister.Most MPs have vowed to oppose any attempt to set up a local tribunal or special court to deal with the crimes on grounds they will be prone to manipulation from the political class.He also criticized those vouching for the Truth, Justice and Reconciliation Commission to handle the crimes committed during the violence saying it is not recognized by the Rome Statute.
“Rome Statute and International Criminal Act do not consider punishing international crimes through reconciliation or prayer. International crimes are punished such as crimes against humanity, war crimes and genocide are punished through a judicial process such as a special tribunal or ICC,” added Mutula.