What you need to know:
- Kenya has no option but to form tribunal, says the chief prosecutor at ICC
The International Criminal Court has warned that if Kenya does not move fast to act on the Waki report, then it will take over the cases of the names contained in a secret envelope handed to Kofi Annan.
Prosecutor Luis Moreno-Ocampo said if Kenya failed to try the suspects of post-election violence, then the court will move in to start investigations and prosecute those involved.
He said Kenya had no option but to form a tribunal to investigate and prosecute suspects in the Waki secret envelope handed over to Mr Annan, the former UN secretary-general who was chief mediator in the talks that led to the coalition government.
Mr Moreno-Ocampo told nominated MP Musa Sirma during a meeting of Parliamentarians for Global Action in the Dominican Republic last week that the ICC was watching what the Government will do.
Mr Sirma divulged the candid and yet stern message to powerful individuals in Prime Minister Raila Odinga’s Orange Democratic Movement as well as President Kibaki’s Party of National Unity, which threw them into a panic kicking off a flurry of consultations.
The panic has led to a change of mind and even strategies on how to implement the Waki report that gives strict timelines.
If the Government starts the implementation process from tomorrow during a scheduled Cabinet meeting to be chaired by President Kibaki, it has up to February 28 to enact the laws and form a local tribunal.
However, if it fails to start the process, the envelope will automatically be handed over to the ICC on March 1 — the end of the 135-day timetable contained in the Waki report.
The 60-day deadline began on October 17 when the Waki report was given to former UN chief Kofi Annan.
A Statute for the Special Tribunal will then be enacted into law and come into force within 45 days after the signing of the agreement.
The tribunal will start its work within 30 days after the presidential assent to the Bill enacting the statute.
If either an agreement for the establishment of the tribunal is not signed, or the statute fails to be enacted, or the tribunal fails to start work, or its functions are subverted after starting, the list of suspects behind the chaos will be forwarded to the International Criminal Court.
To avoid bottlenecks, the Bill establishing the tribunal will be insulated against objections on constitutionality and anchored in the Constitution. Already, PNU and ODM MPs have backtracked on their earlier hard-line stance against the report.
ODM argued it was “full of incurable errors”.
Although ODM Parliamentary Group and PNU MPs had dismissed the report, they have changed their minds.
However, some ODM MPs who are incensed by the decision of the party’s National Executive Committee to overrule the MPs, plan to hold another Parliamentary Group meeting this week to reaffirm their earlier decision.
The ICC prosecutor in the Dominican Republic was responding to a question by Mr Sirma during the meeting on whether he had received the secret Waki list and what he was going to do about it.
The meeting had been convened to check the status of the ICC ratification by the member countries.
Meanwhile, the Kenya National Commission on Human Rights, on Tuesday said it had submitted its report on post-election violence to the ICC and pledged to help the court to prosecute the suspects.
Mr Sirma told the Nation: “I asked Mr Moreno-Ocompo whether he had received the list from Kenya but he said that was a matter between the ICC and Mr Annan. However, he said they were watching what was happening.”
And he warned: “If you don’t want us to be involved, form the tribunal. We have been alerted about the killings.”
However, the prosecutor said the list of suspects in the envelope will only be the starting point of investigations to establish if there was any case that fits within their mandate.
The Waki report proposes the formation of a local tribunal to investigate and prosecute suspects in the envelope given to Mr Annan.
Mr Sirma was the Kenyan representative in the meeting that saw seven MPs from the Democratic Republic of Congo ask Mr Moreno-Ocampo to investigate and prosecute rebel leader Laurent Nkunda over crimes against humanity.
The UN has accused the rebels in DRC and pro-government militia of war crimes saying it would not tolerate it.
In the meeting were also Sudanese MPs and officials who wanted Mr Moreno-Ocampo to withdraw the indictment of President Omar el Bashir saying it was bound to cause more trouble in the volatile Darfur region.
It is understood the prosecutor advised the MPs to present any of their grievances to the ICC, at The Hague.
And the Nation learnt that the fear that post-election violence suspects could be taken to the ICC at The Hague, The Netherlands, is behind the change of mind by some MPs within PNU and ODM.
Sources said PNU leaders were taken through the Waki report and its implications if a local tribunal was not formed by lawyers Mutula Kilonzo who is also Metropolitan minister and former Kanu chief whip Justin Muturi.
Mr Kilonzo managed to convince 10 Cabinet ministers allied to PNU not to dismiss the report as this would land the suspects in the ICC.
It was then that the ministers under the chairmanship of Vice-President Kalonzo Musyoka resolved to call the party’s PG to share with them the idea.
On Tuesday, Mr Kilonzo, Mr Sirma, MPs Bonny Khalwale and Cyrus Jirongo said MPs had read and understood that it was futile to dismiss the Waki report when it had a self-implementing mechanism.
Sources also said that some MPs will propose amendments to the Waki recommendations to ensure that instead of having two foreign judges and one local in both tribunal courts, two judges should come from Kenya. The proposals are being studied by key Government officials.
The Nation also learnt that PNU leaders want President Kibaki to return the recently passed Truth Justice and Reconciliation Bill to Parliament with a memo of proposals that could see the Bill incorporate the proposed tribunal.