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Kenya urged to establish independent tribunal for post-election violence cases

By Bernard Hibbitts (editor) and University of Pittsburgh School of Law students.

[JURIST] Kenya should establish an independent tribunal to prosecute those believed to be responsible for the post-election violence in Kenya in late 2007 and early 2008 instead of relying on its own judicial system, Human Rights Watch (HRW) urged Monday. The HRW statement comes in response to last week's announcement by the Kenyan Cabinet that it will undertake judicial reforms to keep the option of trying suspects in domestic courts open. The cabinet did not reach a firm decision, but said it is still weighing its options and pledged a "commitment to the rule of law." HRW called for an independent tribunal with international support and participation, saying: The argument for a special tribunal has always been that the Kenyan judiciary lacks independence, and the necessary root-and-branch reforms of the entire justice system will take years. The idea that the existing judicial system can deal with the senior politicians and government officials who allegedly incited and organized the killing is an insult to the memory of those who lost their lives.HRW said that if the Kenyan government will not create an independent tribunal, then it should immediately refer the cases to the International Criminal Court (ICC).Last month, ICC chief prosecutor Luis Moreno-Ocampo received and reviewed a sealed envelope listing the names of those believed to be responsible for the post-election violence. The sealed envelope was sent to the ICC by former UN secretary-general and current chairman of the AU Panel of Eminent African Personalities Kofi Annan. Moreno-Ocampo said that the Kenyan government has the "the primary responsibility for investigating and prosecuting these crimes" and had "committed to referring the case to the ICC by June 2010" if it is unable to create an appropriate tribunal by September, as planned. Because Kenya is party to the Rome Statute, Moreno-Ocampo may prosecute suspects believed to have committed crimes over which the ICC has jurisdiction. In late December 2007, tens of thousands of protesters took to Kenya's streets accusing Kenyan President Mwai Kibaki of election fraud after early opinion polls suggested rival Raila Odinga was in the lead. Kibaki ultimately won the election by a narrow margin. Two months later, in a move that could have eased the violence, Kibaki and Odinga agreed to write a new constitution for Kenya. Earlier this year, however, Kenya's parliament rejected the Constitution of Kenya (Amendment) Bill, 2009, along with a Special Tribunal for Kenya Bill, 2009 that would have set up a special domestic court to try persons believed to have committed post-election crimes. An estimated 1,500 people died as a result of the election violence.

Full post as published by JURIST - The Paper Chase on August 03, 2009 (boomark / email).