A. INTRODUCTION
1- The Kenya National Commission on Human Rights (KNCHR) welcomes the efforts by both the executive and parliament to establish the Special Tribunal for Kenya through a constitutional amendment and enactment of the Statute Establishing a Special Tribunal for Kenya, 2009 to try alleged perpetrators of the 2007 post- election violence. We therefore expect that recent developments during the Parliamentary debate are not manifestations of a lack of commitment to enact these important laws as recommended by the Waki Commission.
2- The Waki Commission recommended the International Criminal Court (ICC) only as a fallback mechanism in the event that the local process fails; KNCHR holds the position that creating an effective Special Tribunal for Kenya is the more appropriate option for a country intent on restoring faith in its institutions.
However, trying the perpetrators at the ICC is more appropriate only if Parliamentarians are unable or unwilling to establish an effective Special Tribunal properly insulated from political manipulation.
3- KNCHR also observes that not many stakeholders have had time to provide input into the process. Owing to the significance of the issues at stake, it is crucial that views from other stakeholders be considered in the on-going debate.
B. ISSUES AND RECOMMENDATIONS
(I) Possible Constitutional Challenges
4- The proposed Tribunal raises a number of constitutional issues which if not addressed are likely to lead to incessant litigation. The specific sections of the Constitution that may be a source of legal battles include: Section 14 (Immunity from prosecution of a sitting president); Section 26 (Powers of the Attorney General to continue or terminate criminal proceedings); Section 27 (Powers of the President to grant pardon); Section 60 (1) (High Court as superior court); Section 62 (2) (Powers of the President to appoint judges on advice of the Judicial Service Commission); Section 77 (4) (No prosecution of offences that did not legally exist at the time of commission or omission)
5- The proposed Section 3A (2) of the Constitutional of Kenya (Amendment) Bill, 2009 states that "For the avoidance of doubt, the provisions of the Statute shall not be deemed to be inconsistent with this Constitution." There are those who hold the view that the provision is adequate in safeguarding the Tribunal from constitutional challenges. But other experts think that the provision is weak and does not give any guarantees. Therefore, KNCHR proposes that the proposed Section 3A (2) should read: "For the avoidance of doubt, the provisions of the Statute shall not be deemed to be inconsistent with Sections 14, 26, 27, 60 (1), 62 (2) and 77 (4) of this Constitution."
(II) Fallback mechanism
6- The Waki Commission proposed the International Criminal Court (ICC) as the fallback mechanism in the event the process of establishing the Special Tribunal or its operations becomes ineffective. The proposed Statute is silent on what happens if it is rendered ineffective or otherwise the Tribunal fails to deliver. KNCHR proposes that a clause be included in the Statute to permit the ICC to intervene in the event that the Tribunal is rendered ineffective for one reason or the other.
(III) Jurisdiction
7- Crimes under international law: Section 5 of the Bill limits the definition of crimes to the "this' Statute. However, the crimes set out are those under international law. KNCHR recommends that Section 5 should be recast such that the crimes referred to are those committed in accordance with the provisions of "this" Statute or international criminal law.
8- Referral of cases before courts: Section 7 (3) only anticipates the Tribunal to request the court to defer cases to it. However the provision does not contemplate that courts may on their own defer cases to the Tribunal where they believe those cases fall under the jurisdiction of the Tribunal. KNCHR recommends that Section 7 should be amended to include this latter possibility.
9- Temporal jurisdiction: KNCHR also considers the temporal jurisdiction under Section 8 (2) (Dec 3, 2007 - Feb 28. 2008) as limited in scope. KNCHR proposes that the period be backtracked to January 2007. This period marks the beginning of the election year and is sufficient if prior events leading to post-elections violence have to be considered as suggested in sub-section 3.
10- Personal Jurisdiction: Section 5 states that the Tribunal shall have jurisdiction over natural and artificial persons. For the avoidance of doubt, KNCHR proposes that organised criminal gangs be included in the
definition.
(IV) Crimes Against Humanity
11- Section 2 defines crimes against humanity to include systematic attacks against any civilian population on various grounds such as national and ethnic or religious grounds. According to international standards, crimes against humanity are committed against any civilian population regardless of the stated grounds. The key element in crimes against humanity is demonstrating that the criminal activity was "systematic and committed against the civilian population." KNCHR recommends the adoption of the international standards by deleting the grounds of attacks from section 2.
(V) Appointment Procedure
12- Judges: The appointment procedure of judges under Sections 16, 17 and 18 of the proposed law relies mostly on the goodwill of both the President and the Prime Minister. The proposed law also gives powers to the President and the Prime Minister to appoint the Chairperson of both the Trial and Appeal Chambers. KNCHR proposes that in the appointment of the two chairpersons, the Judicial Service Commission and the Law Society of Kenya may play an advisory role to both the President and the Prime Minister. Alternatively, the President in concurrence with the Prime Minister may nominate judges but the nominees are later confirmed through Parliamentary vetting.
(VI) Registry
13- The Registry is one of the organs of the Tribunal (Section 3 (3)). Section 31 establishes the Registry. There is some inconsistency between Section 3(3) and Section 31 in terms of whether the intention is to establish the Registry or Office of the Registrar. KNCHR proposes that only one should be chosen. Comparatively, other jurisdictions establish the Registry before appointing the Registrar.
(VII) Parliamentary Veto
14- Parliament has been given powers under various provisions in the proposed Statute especially where there is a gridlock between the President and the Prime Minister. KNCHR considers that the proposed threshold vote (50% of all MPs) is a bit high and MPs who prefer the status quo may absent themselves deliberately to ensure that the 50% is not arrived at. Further, the provision does not state what happens if the 50% is not achieved.
15- KNCHR proposes that in the event of a gridlock between the President and Prime Minister, there should be a possibility of two rounds of voting. In the first instance, the 50% threshold should apply. However, where the 50% is not achieved, a second vote should be taken within 7 days where a simple majority of all members present should be able to pass a resolution.
(VIII) Investigations and Indictment of Public Officials
16- Section 35 (8) has been controversial because of its requirement that names of the suspects under investigations remain secret until the persons have been indicted. KNCHR holds the view that the presumption of innocence should remain the primary reason behind keeping the names secret until someone has been indicted. This also will ensure that the witnesses are protected against any threats that may arise at the initial stages of investigations.
17- However, in the event that it is established that a suspect has or is likely to interfere with investigations, the Prosecutor should be able to request the appointing authority to relieve the public official of his duties even before indictment. KNCHR also proposes that that Section 36 be amended by adding a sub-section requiring a person holding public office at the time of his indictment to step aside.
(IX) Pre-Trial Hearings
18- Section 38 of the proposed Statute does not anticipate the pre-trial proceedings to be held in public. KNCHR recommends that a sub-section be added under Section 38 to allow the pre-trial hearings to be in public unless otherwise necessitated by the need to protect the process.
(X) Penalties
19- Death Penalty: Section 53 does not contemplate death sentence against person(s) found guilty of serious crimes under the Statute. This is consistent with the international criminal practice such as the ICC. However, this is clearly inconsistent with the Kenyan Constitution where offences similar to those under the Special Tribunal e.g. murder is punishable by death. If the two laws are retained, this will amount to discrimination against those tried by the ordinary courts vis-vis those tried by the Special Tribunal for similar offences. KNCHR proposes that Parliament should amend the Constitution and the Penal Code (Cap 63 Laws of Kenya) by expunging the death sentence.
20- Bar from Public Office: Section 53 (5) bars persons convicted of crimes under the Statute from holding any public or elective office. Due to the different levels of gravity of crime under the Statute, it may not be necessarily in the interest of justice to bar all convicts from holding public office. KNCHR proposes that those to be barred from holding public office completely are those convicted for crimes under Sections 10, 11 and 12 of the Statute.
(XI) Minister
21- Section 2 defines "Minister* under the Statute to be the Minister for the time being responsible for matters relating to justice and constitutional affairs. Owing to the political nature, and possible perception of partisanship on the operations of the Tribunal, KNCHR recommends that the Minister under the Statute should be the Office of the Attorney General.
(XII) Special Reports
22- Section 62 (1) obligates the Tribunal to make annual reports of its activities. However, it does not contemplate other reports. KNCHR recommends that a sub-section be added to allow the Tribunal to make other special reports on its activities where need be to the Panel of Eminent Personalities. These reports may relate to the challenges the Tribunal might be facing in discharging its mandate.
(XIII) Amnesty: Tribunal Vs TJRC
23- KNCHR foresees a situation whereby suspects who have been granted amnesty under the TJRC become immune to the jurisdiction of the Tribunal. KNCHR recommends the inclusion of a provision linking the provisions on amnesty in the TJRC Act 2009 and the process of indictment and conviction in "this" Statute.
(XIV) Gender, Children and Sexual Offences
24- KNCHR is concerned that the Statute is NOT gender sensitive and this may be replicated at the implementation stage. KNCHR proposes that the Statute should be engendered across provisions including but not limited to appointments. The Registrar and the Prosecutor should establish units with personnel who are experts in trauma management, gender-related crimes such as crimes of sexual violence and violence against children
The Statute should also expressely state what, if at all, should happen to children who may face allegations of participating in crimes under the jurisdiction of the Special Court.
FLORENCE SIMBIRI-JAOKO
CHAIRPERSON KENYA NATIONAL COMMISION ON HUMAN RIGHTS
1- The Kenya National Commission on Human Rights (KNCHR) welcomes the efforts by both the executive and parliament to establish the Special Tribunal for Kenya through a constitutional amendment and enactment of the Statute Establishing a Special Tribunal for Kenya, 2009 to try alleged perpetrators of the 2007 post- election violence. We therefore expect that recent developments during the Parliamentary debate are not manifestations of a lack of commitment to enact these important laws as recommended by the Waki Commission.
2- The Waki Commission recommended the International Criminal Court (ICC) only as a fallback mechanism in the event that the local process fails; KNCHR holds the position that creating an effective Special Tribunal for Kenya is the more appropriate option for a country intent on restoring faith in its institutions.
However, trying the perpetrators at the ICC is more appropriate only if Parliamentarians are unable or unwilling to establish an effective Special Tribunal properly insulated from political manipulation.
3- KNCHR also observes that not many stakeholders have had time to provide input into the process. Owing to the significance of the issues at stake, it is crucial that views from other stakeholders be considered in the on-going debate.
B. ISSUES AND RECOMMENDATIONS
(I) Possible Constitutional Challenges
4- The proposed Tribunal raises a number of constitutional issues which if not addressed are likely to lead to incessant litigation. The specific sections of the Constitution that may be a source of legal battles include: Section 14 (Immunity from prosecution of a sitting president); Section 26 (Powers of the Attorney General to continue or terminate criminal proceedings); Section 27 (Powers of the President to grant pardon); Section 60 (1) (High Court as superior court); Section 62 (2) (Powers of the President to appoint judges on advice of the Judicial Service Commission); Section 77 (4) (No prosecution of offences that did not legally exist at the time of commission or omission)
5- The proposed Section 3A (2) of the Constitutional of Kenya (Amendment) Bill, 2009 states that "For the avoidance of doubt, the provisions of the Statute shall not be deemed to be inconsistent with this Constitution." There are those who hold the view that the provision is adequate in safeguarding the Tribunal from constitutional challenges. But other experts think that the provision is weak and does not give any guarantees. Therefore, KNCHR proposes that the proposed Section 3A (2) should read: "For the avoidance of doubt, the provisions of the Statute shall not be deemed to be inconsistent with Sections 14, 26, 27, 60 (1), 62 (2) and 77 (4) of this Constitution."
(II) Fallback mechanism
6- The Waki Commission proposed the International Criminal Court (ICC) as the fallback mechanism in the event the process of establishing the Special Tribunal or its operations becomes ineffective. The proposed Statute is silent on what happens if it is rendered ineffective or otherwise the Tribunal fails to deliver. KNCHR proposes that a clause be included in the Statute to permit the ICC to intervene in the event that the Tribunal is rendered ineffective for one reason or the other.
(III) Jurisdiction
7- Crimes under international law: Section 5 of the Bill limits the definition of crimes to the "this' Statute. However, the crimes set out are those under international law. KNCHR recommends that Section 5 should be recast such that the crimes referred to are those committed in accordance with the provisions of "this" Statute or international criminal law.
8- Referral of cases before courts: Section 7 (3) only anticipates the Tribunal to request the court to defer cases to it. However the provision does not contemplate that courts may on their own defer cases to the Tribunal where they believe those cases fall under the jurisdiction of the Tribunal. KNCHR recommends that Section 7 should be amended to include this latter possibility.
9- Temporal jurisdiction: KNCHR also considers the temporal jurisdiction under Section 8 (2) (Dec 3, 2007 - Feb 28. 2008) as limited in scope. KNCHR proposes that the period be backtracked to January 2007. This period marks the beginning of the election year and is sufficient if prior events leading to post-elections violence have to be considered as suggested in sub-section 3.
10- Personal Jurisdiction: Section 5 states that the Tribunal shall have jurisdiction over natural and artificial persons. For the avoidance of doubt, KNCHR proposes that organised criminal gangs be included in the
definition.
(IV) Crimes Against Humanity
11- Section 2 defines crimes against humanity to include systematic attacks against any civilian population on various grounds such as national and ethnic or religious grounds. According to international standards, crimes against humanity are committed against any civilian population regardless of the stated grounds. The key element in crimes against humanity is demonstrating that the criminal activity was "systematic and committed against the civilian population." KNCHR recommends the adoption of the international standards by deleting the grounds of attacks from section 2.
(V) Appointment Procedure
12- Judges: The appointment procedure of judges under Sections 16, 17 and 18 of the proposed law relies mostly on the goodwill of both the President and the Prime Minister. The proposed law also gives powers to the President and the Prime Minister to appoint the Chairperson of both the Trial and Appeal Chambers. KNCHR proposes that in the appointment of the two chairpersons, the Judicial Service Commission and the Law Society of Kenya may play an advisory role to both the President and the Prime Minister. Alternatively, the President in concurrence with the Prime Minister may nominate judges but the nominees are later confirmed through Parliamentary vetting.
(VI) Registry
13- The Registry is one of the organs of the Tribunal (Section 3 (3)). Section 31 establishes the Registry. There is some inconsistency between Section 3(3) and Section 31 in terms of whether the intention is to establish the Registry or Office of the Registrar. KNCHR proposes that only one should be chosen. Comparatively, other jurisdictions establish the Registry before appointing the Registrar.
(VII) Parliamentary Veto
14- Parliament has been given powers under various provisions in the proposed Statute especially where there is a gridlock between the President and the Prime Minister. KNCHR considers that the proposed threshold vote (50% of all MPs) is a bit high and MPs who prefer the status quo may absent themselves deliberately to ensure that the 50% is not arrived at. Further, the provision does not state what happens if the 50% is not achieved.
15- KNCHR proposes that in the event of a gridlock between the President and Prime Minister, there should be a possibility of two rounds of voting. In the first instance, the 50% threshold should apply. However, where the 50% is not achieved, a second vote should be taken within 7 days where a simple majority of all members present should be able to pass a resolution.
(VIII) Investigations and Indictment of Public Officials
16- Section 35 (8) has been controversial because of its requirement that names of the suspects under investigations remain secret until the persons have been indicted. KNCHR holds the view that the presumption of innocence should remain the primary reason behind keeping the names secret until someone has been indicted. This also will ensure that the witnesses are protected against any threats that may arise at the initial stages of investigations.
17- However, in the event that it is established that a suspect has or is likely to interfere with investigations, the Prosecutor should be able to request the appointing authority to relieve the public official of his duties even before indictment. KNCHR also proposes that that Section 36 be amended by adding a sub-section requiring a person holding public office at the time of his indictment to step aside.
(IX) Pre-Trial Hearings
18- Section 38 of the proposed Statute does not anticipate the pre-trial proceedings to be held in public. KNCHR recommends that a sub-section be added under Section 38 to allow the pre-trial hearings to be in public unless otherwise necessitated by the need to protect the process.
(X) Penalties
19- Death Penalty: Section 53 does not contemplate death sentence against person(s) found guilty of serious crimes under the Statute. This is consistent with the international criminal practice such as the ICC. However, this is clearly inconsistent with the Kenyan Constitution where offences similar to those under the Special Tribunal e.g. murder is punishable by death. If the two laws are retained, this will amount to discrimination against those tried by the ordinary courts vis-vis those tried by the Special Tribunal for similar offences. KNCHR proposes that Parliament should amend the Constitution and the Penal Code (Cap 63 Laws of Kenya) by expunging the death sentence.
20- Bar from Public Office: Section 53 (5) bars persons convicted of crimes under the Statute from holding any public or elective office. Due to the different levels of gravity of crime under the Statute, it may not be necessarily in the interest of justice to bar all convicts from holding public office. KNCHR proposes that those to be barred from holding public office completely are those convicted for crimes under Sections 10, 11 and 12 of the Statute.
(XI) Minister
21- Section 2 defines "Minister* under the Statute to be the Minister for the time being responsible for matters relating to justice and constitutional affairs. Owing to the political nature, and possible perception of partisanship on the operations of the Tribunal, KNCHR recommends that the Minister under the Statute should be the Office of the Attorney General.
(XII) Special Reports
22- Section 62 (1) obligates the Tribunal to make annual reports of its activities. However, it does not contemplate other reports. KNCHR recommends that a sub-section be added to allow the Tribunal to make other special reports on its activities where need be to the Panel of Eminent Personalities. These reports may relate to the challenges the Tribunal might be facing in discharging its mandate.
(XIII) Amnesty: Tribunal Vs TJRC
23- KNCHR foresees a situation whereby suspects who have been granted amnesty under the TJRC become immune to the jurisdiction of the Tribunal. KNCHR recommends the inclusion of a provision linking the provisions on amnesty in the TJRC Act 2009 and the process of indictment and conviction in "this" Statute.
(XIV) Gender, Children and Sexual Offences
24- KNCHR is concerned that the Statute is NOT gender sensitive and this may be replicated at the implementation stage. KNCHR proposes that the Statute should be engendered across provisions including but not limited to appointments. The Registrar and the Prosecutor should establish units with personnel who are experts in trauma management, gender-related crimes such as crimes of sexual violence and violence against children
The Statute should also expressely state what, if at all, should happen to children who may face allegations of participating in crimes under the jurisdiction of the Special Court.
FLORENCE SIMBIRI-JAOKO
CHAIRPERSON KENYA NATIONAL COMMISION ON HUMAN RIGHTS
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