The decision by the country’s parliament comes in the wake of findings of a commission appointed to unearth those who financed, planned, organized or incited that violence - the worst in the East African country’s history that emanated from the disputed presidential poll.

The findings of the commission chaired by a local high court judge Philip Waki, contain a list of 10 prominent persons among them six cabinet ministers cited for investigation and prosecution for alleged crimes against humanity.

The list is in custody of former UN secretary general Kofi Anan - the man who presided over peace talks in the country that resulted in the formation of a coalition government between President Mwai Kibaki and his main rival in the disputed poll, prime minister Raila Odinga .

The Annan mediation team that included former South African first lady Graca Machel, gave the Kenyan parliament up to 31st of March to constitute a local tribunal failure to which the list of the suspects will be handed over to the International Criminal Court (ICC) in the Hague for prosecution.

The parliament this week made its first step toward establishing the tribunal, enacting a law that will pave way for appointment of four local and foreign judges to preside over prosecution of suspects, but made a provision to save political careers of those named in the list.

While Annan had recommended that those named in the list will quit public offices once the panel of judges is in place, the parliament altered that clause to have the suspects only step down once an international prosecutor yet to be named establishes that an individual has a case to answer.

This in effect means that ministers in the list and all of whom are influential and powerful in the government will get some breathing space - they will keep their jobs until they are indicted and also probably use their office and money to manipulate witness and conceal evidence to avoid prosecution.

Retaliatory meetings

For example deputy prime minister and finance minister Uhuru Kenyatta , a confidant of president Kibaki and who is alleged to have sat in a meeting that planned retaliatory killings of non-Kikuyu communities in the rift valley province may escape indictment owing to the very secretive nature of such a meeting.

The meeting if indeed took place is alleged to have been held in state house, president Kibaki’s official residence, and as such getting witnesses to give evidence against Kenyatta will never be easy.

Other ministers named include William Ruto, William Ole Ntimama and Henry Kosgey all allied to Ondinga’s ODM party. Those found guilty will be barred from ever seeking and holding public office - elective or otherwise besides the court’s punishment.

But fears are abound that certain legal technicalities in the laws of Kenya may be used to save such persons from punishment or even standing trial. For example under Kenyan laws the attorney general who is the government’s principal legal officer has the powers to terminate any criminal prosecutions any time he deems fit irrespective of crimes committed and without giving reasons.

The Kenyan attorney general has in the past entered nolle proseque in numerous cases the most recent being in 2006 when he terminated a case filed by a local reporter against first lady Lucy Kibaki for assault.

Secondly, the president has the powers to grant clemency to citizens legally jailed by courts without any reference to anyone and without giving reasons and irrespective of the gravity of crime committed.

It is thus feared that unless the two laws are amended the president and the attorney general could use these powers watering down the effectiveness of the court. It is for this reasons that civil society groups here are calling for repeal of these clauses to ensure that those under trial do not escape justice.

New law

Another cause of concern is that the Kenyan parliament is on the verge of passing a new law called the Truth Justice and Reconciliation (TRJ) Act 2008, that calls for establishment of Truth and Reconciliation commission to deal with crimes committed against the public since the country’s independence from Britain in 1963.

Under this act those named can confess their sins and seek forgiveness and be pardoned. As such they would escape punishment and get on with their lives.

It is this act also that it is feared people who committed heinous crimes against humanity may use to go scot free denying justice to victims of their acts.

But some people have argued that under international law the principle of pardon does not apply and the Kenyan tribunal will be set up precisely under this law.

Aside from the law there is the political side of this whole business in that the persons named are powerful politicians close to both Kibaki and Raila and very central to their masters political lives.

For example Kenyatta is Kibaki’s heir apparent in Kenya’s succession plan. It is therefore common sense that the president would do anything within his means to save his favorite heir and that may include manipulating the tribunal at every stage. He will ensure that the judges he appoints are weak- kneed yes guys who will do his binding.

When all is said and done Kenyans can only wait and pray that justice will be done and that expediency will not stand in way of justice for the over 1000 victims and thousands who lost property in the violence.