Following the recommendations made by the Commission of Inquiry into Post-Election Violence (the Waki report, published on October 15, 2008), President Mwai Kibaki and Prime Minister Raila Odinga accepted a political agreement on December 17, 2008, to establish a Special Tribunal. On January 27, 2009 Parliament had laid the ground for the establishment of the Special Tribunal by adopting the Waki Report. It also enacted the International Crimes Bill that domesticated the International Criminal Court (ICC) Statute and defined international crimes, paving way for the establishment of the Special Tribunal. The deadline provided by the Waki report to adopt the Special Tribunal for Kenya Bill was January 29, 2009. However, members of Parliament have not yet adopted it.
FIDH and KHRC urge the Kenyan authorities to take all necessary measures in order to immediately establish an effective, impartial and independent Special Tribunal. Our organisations:
– Stress the need to amend the Constitution in particular to lift the immunity provisions for the President as far as international crimes are concerned and to confirm the retroactive nature of crimes within the Special Tribunal’s jurisdiction, such as genocide and crimes against humanity according to Article 15 of the International Covenant on Civil and Political Rights which provided that « nothing shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by the community of nations, » as well as Articles 27 and 29 of the ICC Statute.
– Request Members of Parliament to adopt the Special Tribunal for Kenya Bill without further delay taking into account: the independence and impartiality of the Special Tribunal; the possibility to remove from public office the persons being investigated to avoid any kind of interference; the necessary protection of victims and witnesses including human rights defenders; the exclusion of the death penalty in the sentences to be pronounced by the Special Tribunal; and cooperation with the Truth, Justice and Reconciliation Commission.
– Request Philip Aston, the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, currently in visit to Kenya, to advocate before national authorities for the immediate establishment of an effective, impartial and independent Special Tribunal.
Recognising the difficulty, however, of Parliament passing the Special Tribunal for Kenya Bill without altering the context within which individual members vote, we further:
– Call upon Kofi Annan to immediately hand over the ‘envelope/list’ with supporting evidence and witness statements to the ICC Prosecutor ;
– Call upon the ICC Prosecutor to continue to analyse the possibility of opening an investigation into the crimes committed at the occasion of the last presidential election in the case national authorities are unable or unwilling to investigate and carry out prosecutions on the most serious crimes; and to take into consideration in this regard the current failure of the Kenyan government to set up the Special Tribunal ;
– Demand that the President and the Prime Minister, as a sign of their commitment to justice in this country, immediately instruct all relevant agencies and offices to activate normal processes of criminal justice for any and all crimes carried out during the period.