The Kenyan cabinet is expected to approve the WakiCommission's report Thursday, paving the way for the creation of aspecial tribunal to try those behind the country's 2007 post-election violence.The Commission was named earlier this year to investigate the violence andkillings that followed the controversial election.
The commission's chairman,Justice Phillip Waki, had recommended an International Criminal Court-typetribunal with foreign judges.
Executive director of TransparencyInternational, Kenya Job Ogonba told VOA the political mood of the day in Kenya is that the cabinetwill most likely approve a local tribunal within the framework of a truth andreconciliation commission.
"Thereason being that the coalition government, by its definition, implies acompromise. Therefore a local tribunal is the likeliest avenue for thatcompromise than The Hague. However, Transparency International Kenya, itsposition is that if the compromise is such that justice does not seem to beserved, then we will push hard for the implementation, to the letter and spiritof the Waki Commission report. If that be Hague then so be it," he said.
Ogonbasaid it is the hope of Transparency International Kenya that a truth andreconciliation commission would bring the perpetrators of the post-electionviolence to justice. However he said he was concerned that too much power tomete out justice could be abused.
"Byits very definition, a crime against humanity deserves jurisprudence that isbeyond my discretion or any other person's discretion. It means it has to bedealt with in certain way because it is a crime against humanity. If there areother crimes that do not qualify as crimes against humanity, then they can bedealt with in other ways that are defined by our own laws and by the tenets ofthe Truth, Justice and Reconciliation Commission that will be set up. My fearand the fears of a lot of Kenyans is that that avenue might be abused tocircumvent the justice that is due to perpetrators of crimes against humanity,"Ogonba said.
Hesaid the proposed Truth, Justice and Reconciliation Commission of Kenya appearsto have a mechanism in place to punish perpetrators who would be found guilty.
However,Ogonba said the commission should not have a broad discretion to pass judgmentor mete out justice against perpetrators of crimes against humanity.
"Theproponents of setting up such commission argue that if one does not truthfullyand remorsefully confess to the crimes that one has committed, then thatcommission should have the powers to bring the full letter of the laws thatexist, both national and international to bear on such a person. But then againthat commission, in my opinion, should not have a broad discretion such that itcan pass judgment or mete out justice on crimes against humanity," he said.
Accordingto reports, if a tribunal was not in place by December 17, then names ofpost-election violence perpetrators which are in the possession of ChiefMediator and former UN Secretary General Kofi Annan, would be turned over tothe ICC prosecutor in the Hague.
Givingthat scenario, Ogonba said some cabinet members would prefer the local Truth,Justice and Reconciliation Commission than the ICC.
"Ifone analyzes closely the reports in the local media, it's possible discern thatsome of the members of the cabinet themselves have been mentioned in the WakiReport as having been perpetrators of the crimes that took place at thebeginning of this year. If that be the case then they rather the Truth, Justiceand Reconciliation Commission set up in Kenya than deal with the ICC," Ogonbasaid.