The Kenyan cabinet is expected to approve the Waki Commission's report Thursday, paving the way for the creation of a special tribunal to try those behind the country's 2007 post-election violence. The Commission was named earlier this year to investigate the violence and killings that followed the controversial election.
The commission's chairman, Justice Phillip Waki, had recommended an International Criminal Court-type tribunal with foreign judges.
Executive director of Transparency International, Kenya Job Ogonba told VOA the political mood of the day in Kenya is that the cabinet will most likely approve a local tribunal within the framework of a truth and reconciliation commission.
"The reason being that the coalition government, by its definition, implies a compromise. Therefore a local tribunal is the likeliest avenue for that compromise than The Hague. However, Transparency International Kenya, its position is that if the compromise is such that justice does not seem to be served, then we will push hard for the implementation, to the letter and spirit of the Waki Commission report. If that be Hague then so be it," he said.
Ogonba said it is the hope of Transparency International Kenya that a truth and reconciliation commission would bring the perpetrators of the post-election violence to justice. However he said he was concerned that too much power to mete out justice could be abused.
"By its very definition, a crime against humanity deserves jurisprudence that is beyond my discretion or any other person's discretion. It means it has to be dealt with in certain way because it is a crime against humanity. If there are other crimes that do not qualify as crimes against humanity, then they can be dealt with in other ways that are defined by our own laws and by the tenets of the Truth, Justice and Reconciliation Commission that will be set up. My fear and the fears of a lot of Kenyans is that that avenue might be abused to circumvent the justice that is due to perpetrators of crimes against humanity," Ogonba said.
He said the proposed Truth, Justice and Reconciliation Commission of Kenya appears to 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 judgment or mete out justice against perpetrators of crimes against humanity.
"The proponents of setting up such commission argue that if one does not truthfully and remorsefully confess to the crimes that one has committed, then that commission should have the powers to bring the full letter of the laws that exist, both national and international to bear on such a person. But then again that commission, in my opinion, should not have a broad discretion such that it can pass judgment or mete out justice on crimes against humanity," he said.
According to reports, if a tribunal was not in place by December 17, then names of post-election violence perpetrators which are in the possession of Chief Mediator and former UN Secretary General Kofi Annan, would be turned over to the ICC prosecutor in the Hague.
Giving that scenario, Ogonba said some cabinet members would prefer the local Truth, Justice and Reconciliation Commission than the ICC.
"If one analyzes closely the reports in the local media, it's possible discern that some of the members of the cabinet themselves have been mentioned in the Waki Report as having been perpetrators of the crimes that took place at the beginning of this year. If that be the case then they rather the Truth, Justice and Reconciliation Commission set up in Kenya than deal with the ICC," Ogonba said.