By Martin Mutua

A Special Tribunal for Kenya… or a date with the International Court of Justice in The Hague for post-election violence suspects — that is one of the far-reaching recommendations of the Waki Commission. And among those that could find themselves before either tribunal as early as June, next year, are people — including some Cabinet ministers — named as nised or participated in the violence.

Suspects who hold public office will step aside and if found guilty, will be banned from public service and from contesting for any electoral position.

Waki also gave harsh indictment on President Kibaki, saying the post-election violence was in part a consequence of his failure and that of his first administration (Narc) to exert political control over the country or to maintain sufficient legitimacy as would have allowed a civilised contest with him at the polls to be possible.

“Kibaki’s regime failed to unite the country, allowed feelings of marginalisation to fester into what became the post-election violence,” said the report.

hunted across borders

While releasing his explosive report yesterday, Justice Philip Waki — who chaired the Commission Investigating Post Election Violence (CiPEV) — revealed he had a secret list of suspected perpetrators of the violence that brought the country down to its knees early in the year.

With equal measure, Justice Waki warned that should the effort to establish the Special Tribunal be subverted, the list of suspects would be forwarded to the Special Prosecutor at The Hague.

In his 500-page report handed over to President Kibaki and Prime Minister Raila Odinga at Harambee House, Nairobi, Waki recommended that the entity be given jurisdiction over criminal cases against persons bearing greatest responsibility for serious crimes, particularly against humanity and related to the 2007 post-election violence.

Specific timeframe

With this, those accused of having perpetrated the violence will have nowhere to go, hide or run to.

Just as in the case of the International Criminal Tribunal for Rwanda (ICTR), those who attempt to flee justice may find themselves being hunted across borders, with prize money for their capture as in the case of fugitive Felicien Kabuga.

In declining to release the names of the alleged perpetrators, Waki and his team said they had placed the names in a special envelope, together with supporting evidence, for the attention of the proposed Special Tribunal.

The tribunal will, once formed, take over all cases in ordinary courts that are related to the 2007 post-election violence.

The commission recommends that Parliament must insulate the tribunal against objections on constitutionality and to that end, it shall be anchored in the Constitution of Kenya.

To ensure that the Special Tribunal comes to fruition, Waki has set a specific timeframe for the Government.

President Kibaki and PM Raila will have to sign an agreement for the establishment of the tribunal, to be manned by individuals whose roles and qualifications the commission spells out, within 60 days of presentation of the report to the Panel of Eminent African Personalities or its representative.

Blanket amnesty

The special tribunal, to be composed of Kenyan and international judges, shall apply Kenyan and the International Crimes law.

The date when the tribunal comes into force will be determined by the President, in consultation with the PM, but in any case within 30 days after the President assents to the Bill.

And the commission ruled out any blanket amnesty for suspects.

Saying the amnesty debate had been politicised on both sides of the political divide, it warned on the need to guard against the culture of impunity.

In this regard, it recommends that the Attorney-General acts firmly against perpetrators of offences punishable under our laws.

The commission also hit out at the Cabinet Security Committee and its co-opted members, accusing them of failing to give direction on security matters prior and during post-election violence.

“This committee is the highest level component of Kenya’s Security Intelligence Machinery yet the Commission could find no evidence that it operated at all let alone effectively in the lead up to and during the elections,” adds the report.

Also on the firing line was the National Security Intelligence Service (NSIS) that was accused of extraordinarily poor judgment and partiality.

The report accuses NSIS of undertaking activities outside their mandate, like attempting to secure ECK accreditation for its officers to be part of the election process.

NSIS also sponsored a survey of the three presidential candidates prior to the elections and communicated this to the Head of the Civil Service Francis Muthaura, as well as advised ECK on the electoral process, the commission said.

The report further said the intelligence report forwarded to other agencies, including the police, did not get to those who could have used it most.

Power personalisation

The police was accused of failing to engage in professional, timely and quality planning and preparations for the elections. The report proposes radical reforms to the police (see story page 9).

The report said that growing power and its personalisation around the presidency was also to blame for the violence. They noted that this had given rise to the view among politicians and the general public that it was essential for their ethnic group to win the presidency in order to access State resources and goods.

Waki said that it was a fact that both police and military were historically perceived to have been recruited along ethnic lines to protect the government of the day.

Courtesy of:http://www.eastandard.net