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Kenya: Recall Parliament to Create Tribunal

(New York, December 23, 2008) - President Mwai Kibaki should recall Parliament early - immediately after New Year - to give it enough time to set up a special tribunal to prosecute perpetrators of election violence, Human Rights Watch said in a letter released today. To satisfy the recommendations of the Waki Commission, which investigated the devastating violence after elections a year ago, and to ensure impartial and independent prosecutions consistent with international standards, the constitution should be amended and a sound framework for the special tribunal enacted by January 30, 2009.

Human Rights Watch made recommendations on improving the independence and effectiveness of the tribunal in an open letter to the cabinet subcommittee responsible for the draft legislation.

In October 2008, the Waki Commission found that Kenyan politicians on all sides had organized and financed attacks on supporters of their opponents in the wake of the 2007 elections, as well as the use of excessive force against civilians by security forces. It recommended establishment of a special tribunal to try major perpetrators of the violence. A draft statute for the special tribunal has been prepared by a government sub-committee but the bill should be amended to ensure the independence and impartiality of the tribunal.

 "The government has done the right thing in committing itself to carry out the Waki recommendations, but there are revisions necessary that will take time," said Georgette Gagnon, Africa director for Human Rights Watch. "If the Waki deadline of January 30 is to be met without compromising the tribunal's effectiveness down the line, Parliament should be recalled quickly and given time to improve the draft bill."

In the letter to the subcommittee, Human Rights Watch makes the following recommendations to improve the draft law establishing the tribunal:

• Define clearly crimes falling within the special tribunal's jurisdiction, including through reference to relevant crimes in the recently adopted International Crimes Bill;
• Focus the tribunal's jurisdiction on those  most responsible for post-election violence;
• Clarify the place of the tribunal in Kenyan law and empower the tribunal's judges to draw on Kenyan law in addition to the practice of international criminal tribunals in developing rules of procedure and evidence;
• Undertake constitutional changes to protect the tribunal's independence from political interference; and
• Make provisions to prosecute other offenses. While the tribunal should focus primarily on serious international crimes, the statute's drafters should consider including other offenses defined under Kenyan law, including murder and sexual violence crimes, within the tribunal's jurisdiction as needed to permit full prosecution of those most responsible for post-election violence.

Human Rights Watch said that the draft statute includes an important provision for the tribunal's chambers to be composed of a mix of national and international judges, a major recommendation of the Waki Commission, and for the appointment of an international prosecutor. The group recommended ensuring sufficient investigative and prosecutorial resources by providing for additional international staff within the prosecutor's office. International judges, prosecutors, and other professional staff can contribute to the effective and independent functioning of the tribunal and complement the expertise of Kenyan counterparts.

Parliament should ensure that the constitutional amendment and the bill setting up the tribunal are passed in due time.

"The Special Tribunal is crucial to Kenya's effort to face its past and deal with a lack of accountability, and so that effort should not be undermined by a law that is rashly drafted or flawed," said Gagnon.

Background

The Waki Commission was set up by the coalition government of national unity as part of the peace and reconciliation mediation process that brought the violence of early 2008 under control. The commission reported in October, recommending a series of reforms and establishment of a special tribunal of international and Kenyan judges to investigate and prosecute those most responsible for the violence. As a signatory to the Geneva Conventions and various human rights treaties, and an International Criminal Court (ICC) member, Kenya is obligated to bring to justice perpetrators of serious international crimes. The Waki report contained a strict timeline for setting up the tribunal and putting it to work, which, if breached, would require the mediator - Kofi Annan - to pass a sealed envelope with the names of chief suspects to the ICC. The ICC prosecutor is analyzing crimes connected to the post-election violence in late 2007 and early 2008.

On December 17, Prime Minister Raila Odinga and President Kibaki signed an agreement to establish the tribunal and carry out the Waki recommendations in full.  Parliament is officially on recess until March 2009, but the Waki report stipulates that a law setting up the tribunal must be enacted by January 30.

Topics: Elections, Prosecution,