PHOTO | PPS President Kenyatta receives the Truth, Justice and
Reconciliation Commission’s final report from team chairman Bethuel
Kiplagat at State House Nairobi.
PPS
The delay in the formation of the
International Crimes Division of the High Court could affect debate on
the Truth Justice and Reconciliation Commission report and hinder the
fight against impunity, an MP has said.
Ol Jororok MP
JM Waiganjo said unless the court is formed “we cannot talk about
justice for the victims of the 2007 post election violence and
reconciliation”.
Mr Waiganjo, who is a lawyer and a
member of the parliamentary Justice and Legal Affairs committee said the
ICD is crucial for the implementation of the TJRC report.
“Part
of the recommendations of the report is prosecution and requires us to
go back to the Waki report for action on small people who did the actual
killing. This is why the formation of the court is important. It is a
pointer to fighting impunity,” Mr Waiganjo said.
The
Waki Commission looked into the causes and perpetrators of 2007
post-election violence and handed names of key suspects to the
International Criminal Court.
Mr Waiganjo, who is a TNA
MP, said since Kenya has in the past been accused of encouraging
impunity it is important that the formation of the ICD is sped up.
The
country, he said, could not push for the return of the Kenyan cases
currently going on in the International Criminal Court back home “yet
ignore the formation of ICD”.
The authorities had
promised to establish the ICD by the end of the year to try those
allegedly involved in the 2007/08 post-election violence, even as cases
against President Uhuru Kenyatta, his deputy William Ruto and radio
presenter Joshua Sang, continue at The Hague.
Attorney
General Githu Muigai and Judicial Service Commission (JSC) member Samuel
Kobia said on the sidelines of the Assemblies of State Parties meeting
in The Hague last year that efforts were in place to establish the ICD
to handle future crimes.
Dr Kobia believed the ICC
should support Kenya in building the national rule of law by creating
the ICD. “It is what will determine its success.”
He
said Kenya was fully prepared to launch the ICD by January this year.
“We have visited Uganda, Rwanda, Cambodia and The Hague to study their
local divisions.”
However, the court is yet to be formed with no explanation coming from the authorities over the delay.
CONTROVERSY AT JSC
However,
Mr Waiganjo whose parliamentary committee is in charge of justice said
the delay was a result of expiry of terms of some of JSC members like
Law Society of Kenya representative Ahmednassir Abdullahi.
The
suspension of former Chief Registrar Gladys Shollei and the controversy
that followed, Mr Waiganjo said, was also to blame for the delay.
“The
happenings within the Judiciary affected the formation of ICD. We are
however keen to see it formed,” Mr Waiganjo said. (READ: Suspension of members to cripple work of commission)
A new Chief Registrar has since been appointed. (READ: Work cut out for new chief registrar)
Mr Waiganjo said the formation of the ICD is vital before the TJRC report is debated and implemented.
“We
want to debate the report immediately after we resume. Without an ICD,
having a compensation and repatriation plan for the victims will be hot
air. We intend to use the ICD to implement the TJRC report. We want to
see it formed,” Mr Waiganjo said.
MPs are currently on recess.
Calling
on Chief Justice Willy Mutunga to hasten the formation of the ICD, Mr
Waiganjo said the division is not only good for the victims but also for
the alleged perpetrators of 2007/08 violence to clear their names.
“It
will also help improve Kenya’s image in the African Union and the
United Nations as it will be seen to be having concerted efforts to have
a court that meets international threshold handle the cases,” Mr
Waiganjo said.
He added: “We want people to know that
if they commit crimes, they will not get away with it whether they are
perpetrators or actual killers.”
Mr Waiganjo however said Parliament had no timeline of debating the TJRC report following an amendment to the TJRC Act.
DEAL WITH INTERNATIONAL CRIMES
Kenyans
have been anxiously waiting for implementation of the report and to
know if some of the key figures that have committed atrocities in the
past and who are adversely mentioned in it could face the law.
If
formed, the new division will put into operation the International
Crimes Act, a domestic version of the Rome Statute, the ICC’s founding
treaty. Kenya incorporated the law into national legislation in 2009
after the ICC launched its investigation into the electoral violence.
Neighbouring Uganda is among the countries that have established an ICD.
In
Uganda, it is a special division of the High Court, a national court
established in 2008, under the 1995 Constitution called the War Crimes
Division.
The Law Society of Kenya and civil society
have also called on the government to speed up the formation of the ICD
to try middle-level perpetrators of the 2007/08 post-election violence
and cross-border offences. (READ: LSK says local unit to handle international crimes 'overdue')
It also called for the building of the Judiciary's capacity to try the cases and other transnational offenses.
The
sub-committee formed to establish the division, where LSK is also
represented, has been grappling with issues including having an
independent prosecutor and training judges to head the division.
LSK
chairman Eric Mutua said the division is not only necessarily because
of the post-election violence perpetrators but for Kenya to have the
capacity to deal with cross-border and other international crimes such
as piracy.
If formed, the ICD is also expected to hear
cases on terrorism, cyber-crime, human trafficking, money laundering,
small arms smuggling and drug trafficking.
Genocide,
war crimes, crimes against humanity and pending post-election violence
cases will also fall under the ICD's jurisdiction.
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