Kenya: How Cabinet killed tribunal

The fear that ministers suspected to have taken part in the chaos would face the trial at The Hague and that a hostile Parliament would shoot down the Bill for a second time weighed heavily on the Cabinet, prompting many of the members to propose alternative ways of dealing with post-election violence.

Sources said the Cabinet could not agree on legal options because, in Parliament, they cannot raise the two-thirds majority to change the Constitution, and the ministers thus opted for a political solution hence the push to expand and make TJRC more representative.

“They clung to the clause waiving immunity of the President and hoped the International Criminal Court (ICC) process would take long,” a minister told The Standard on Saturday.

The source said the resolution to reform the Judiciary and police would deal firmly with impunity. Soon, heads may begin to roll.

Some ministers The Standard on Saturday talked to claimed they were forced to accept the position fronted by President Kibaki and Prime Minister Raila Odinga after a third consecutive deadlock in the Cabinet on how to deal with post-election violence suspects.

But even before the dust settles over the Cabinet decision, the National Council of Churches of Kenya (NCCK) on Friday issued a scathing attack on President Kibaki and Raila and called for their resignation.

“The President and Prime Minister must now dissolve Government and resign to save the country from degenerating into a failed state,” said the NCCK.

The council termed the decision to recommend the Truth Commission to settle post-poll chaos as an “act of subverting justice and indicative of a country that is regressing into a failed state”.

At the Cabinet meeting on Thursday, a minister told The Standard on Saturday a colleague said: “We are all in it. What we should look at is how to find solutions to the causes of violence by uniting the country. The final goal is to try people through normal courts once the police and Judiciary, which are charged with investigations and dispensing of justice, have been reformed.”

Another minister who did not want to be named because discussions at the State House meeting are confidential, explained why the Cabinet did what it did: “It will be a bad image for the Government should MPs block attempts to create a special tribunal. This would confirm to the international community the inability of the Grand Coalition to meet its obligations.”

Five options

Proponents of the TJRC argued the country would slide back into chaos and tribal animosity if top politicians were arrested for trial locally or at The Hague.

It has also emerged ministers trashed five options proposed by a Cabinet sub-committee chaired by Justice Minister Mutula Kilonzo.

After two Cabinet meetings failed to reach consensus on the matter, it was agreed an expanded committee make recommendations and options, outlining the merits and demerits of each proposal given.

The committee included ministers James Orengo (Lands), Kiraitu Murungi (Energy), Moses Wetangula (Foreign), Otieno Kajwang (Immigration), George Saitoti (Internal Security) and Attorney General Amos Wako. It was to report to the Cabinet and advise on all options.

The sub-committee invited lawyers Mutuma Kathurima, Gichira Kibara, and Miguna Miguna to discuss the viability of several options. It was agreed only two options could meet international standards formation of a special tribunal and referring the matter to the ICC at The Hague.

During the meeting on Thursday, members of the Cabinet sub-committee stood by their proposals. But a minister warned the international community was watching Kenya and it would not escape The Hague because any minister linked to crimes risked arrest abroad.

Attempts by Mutula and Orengo to convince the Cabinet TJRC was not a judicial process were shot down by ministers who rooted for national reconciliation and healing.

The sub-committee advised the Cabinet that local courts were not viable because they were not independent and had lost public confidence.

The team said investigation by the police had not gone far and the courts had dismissed the cases.

Sentenced to hang

Four people charged with the killings at Eldorets Kiambaa church on January 1, last year, were acquitted, as have other suspects in post-election cases. However, two people charged with killing two police officers during the chaos were sentenced to death this week.

In an interview after the Cabinet meeting, Raila admitted that the special tribunal option would be shot down by Parliament that has remained hostile to the proposal and “it would be pointless going there again to fail”.

Deputy Prime Minister Uhuru Kenyatta echoed the Prime Ministers position. Tourism Minister Najib Balala, said the country required more healing and reconciliation than trial.

Said Mr Balala: “The President and the PM showed us reconciliation last weekend and this is the way to go. Kenya needs healing among tribes that were previously hostile.”

He was referring to the Presidents three-day tour of Nyanza, last week. The Head of State and the PM resolved to work together.

And on Friday, NCCK General Secretary Peter Karanja said at a press conference in Nairobi, that the implications of Government negligence in dealing with post-election chaos were shocking.

“Despite assurances by the President that he would address transitional justice, famine and hunger, ethnicity, unemployment, insecurity, constitutional reforms, governance has flopped,” he said.

“Considering that President Kibaki has been in office for seven years, can he truly promise to do in two years what he has failed to do in seven? In our assessment, we have found that at the heart of the problems bedevilling our country is a culture of impunity founded on unbridled selfishness and greed of the political leadership.”

After hours of argument, the Cabinet revisited the ICC agreement with Government that the ICC would take action should the Government fail to investigate and prosecute perpetrators of post-election violence by end of next month.

A minister challenged colleagues why they were opposed to policies they had accepted when they unanimously adopted the Justice Philip Waki report, which was later tabled in Parliament and adopted. The report recommended a special tribunal and if this were not set up, then there would be trial at the ICC, in The Netherlands.

The Standard on Saturday