The Cabinet on Tuesday rejected two draft Bills on a local tribunal to try election violence suspects. After four hours of debate without agreement, the meeting was called off and another one scheduled for next Monday.(Pictured: ICC chief mediator Kofi Annan).Ministers who spoke to the Nation on condition of anonymity because Cabinet deliberations are secret, said there were passionate arguments at the meeting, with nearly every minister present asking for a chance to give his or her opinion on whether the masterminds of the slaughter at the last election should be carted off to The Hague or be prosecuted at home by the local tribunal.
List of suspects
The Cabinet meeting had been called to discuss the Bills after chief mediator Kofi Annan, a former UN secretary-general, handed the list of suspects to the International Criminal Court.
The government has promised the ICC that it will establish a suitable tribunal to try the suspects by September.
The Presidential Press Services, in a statement, said two draft Bills, the Constitution of Kenya Amendment Bill and the Special Tribunal for Kenya Bill, were discussed and a decision on whether to push on with them postponed to Monday to give the ministers time to study them.
Both Bills were discussed and a special session of Cabinet will be held next week to discuss the way forward after Cabinet members have had time to study the two proposed Bills, it said.
Justice minister Mutula Kilonzo, his Lands counterpart James Orengo and Attorney General Amos Wako, led the discussions.
Mr Kilonzo took the meeting through the Bills, emphasising the need to make the tribunal independent, fully insulated from legal tactics that could interfere with its work and the need to meet international standards.
Mr Orengo argued that there was need to put in place a tribunal that would bring to an end decades of impunity and serve as a lesson to those who want to circumvent the electoral process. He also said it would also and help to streamline the Judiciary.
Ministers who spoke to the Nation after the meeting said three strong positions emerged from the meeting: One group insisted it will not be possible to try suspects at home without starting a fresh wave of killings in the country.
This group, which was said to have included ministers William Ruto and Henry Kosgey, said the cases should be handled by the International Criminal Court.
Another group, made up mainly of ministers from PNU, supported the establishment of a local tribunal but questioned certain clauses such as those which sought to waive presidential immunity from prosecution, strip the AG of his powers to terminate cases and the Judiciary of its mandate to issue injunctions and the move judges who may be appointed to serve on the tribunal.
Ministers said those who took this line of argument included Kiraitu Murungi (Energy), Moses Wetangula (Foreign), John Michuki (Energy) and George Saitoti (Internal Security), among others.
The proposed tribunal Bill says no official is immune from prosecution. Under the Constitution, the President cannot be prosecuted while in office.
The draft Bill also strips the President of his powers to pardon any person who has been found guilty by the tribunal.
The AG will also not be allowed to use his powers of nolle prosequi – to discontinue a case- against any person facing charges before the tribunal. Similarly, judges of the High Court and magistrates are barred from issuing any injunctions against the proceedings before the tribunal.
Suspects will only be required to resign from the office when they are charged by the tribunal, in essence allowing ministers to retain their positions while under investigations by the tribunal.
Still, it sought to beat the technical hitch associated with the International Crimes Act which came into force in January by insulating the tribunal from sections in our law books that make it unconstitutional to prosecute a person for crimes that were committed before a law came into force.
Some ODM ministers, the sources said, were opposed to the proposal of a majority of the judges being local on grounds that they could easily be manipulated by powerful politicians.
The sources said Mr Kilonzo and Mr Orengo were asked to review the Bill to ensure that the privileges of the offices of the President, the AG and the Chief Justice were restored.
The third group opposed both the local tribunal and ICC options, arguing that the government adopts a judicial mechanism to that will reconcile and unite the country. The duty of Mr Annan, they argued, was to bring together a people divided by the disputed elections and not to punish.
Ministers said their colleagues who took this line included William ole Ntimama and Najib Balala.
Supportive
President Kibaki and Mr Odinga who have emphasised on the importance of forming the local tribunal, were said to have postponed the meeting after it became clear that most ministers were not supportive of the proposed tribunal.
Even if the cabinet endorses the tribunal Bill, there are fears that MPs who return to the House on Tuesday are likely to shoot it down, for the second time.
Kenya has until the end of September to pass a law establishing the tribunal to avoid carting the suspects to The Hague.
Some politicians have in the past linked the violence to the outcome of the presidential elections whose results ODM disputed. They have said that if those who led the violence should be tried, so too should those who they accuse of stealing the election.
About 1,133 people were killed during the violence. Another 650,000 were displaced from their homes, according to Mr Justice Waki.
Daily Nation
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