NAIROBI, Kenya, Feb 10 – A crucial vote that was due on Tuesday afternoon on a Bill that seeks to entrench the proposed Special Tribunal in the Constitution was put off to allow more consultations after gruelling lobbying by Members of Parliament late on Monday night.
President Mwai Kibaki was however still expected to chair a meeting of Ministers and Assistant Ministers on Tuesday morning to whip up support for the Constitution of Kenya (Amendment) Bill 2009.
“The government says it wants to lobby support for the Bill but I believe most MPs have already decided how they will vote. Further consultations won’t help,” Imenti Central legislator Gitobu Imanyara told Capital News.
Mr Imanyara was first to raise objections to the Bill and has marshalled support among MPs in a bid to frustrate its passage.
Orange Democratic Movement (ODM) and Party of National Unity (PNU) lawmakers were expected to hold separate meetings to build consensus on the Bill and it appeared likely a vote on it would be taken on Wednesday.
The Bill was withdrawn after defeat seemed inevitable. It has drawn sharp divisions even within government circles and the required two thirds majority ‘yes’ vote appeared unlikely.
If put to vote and defeated, the Bill can only be brought back to Parliament after six months.
MPs for the Special Tribunal argued that it would preserve Kenya’s sovereignty while those who favour trials at The Hague said local courts were susceptible to manipulation.
International Jurisprudence
If the Bill fails, The Special Prosecutor of the International Criminal Court (ICC) would have to order a fresh inquiry into post poll violence.
Constitutional lawyer Paul Muite explained that the ICC Prosecutor would typically deal with the names contained in a list of post election violence suspects presented by the Justice Philip Waki Commission of Inquiry into Post Election Violence (CIPEV).
“Once he issues a warrant against Mr X, it is the duty of all the countries which are signatory to the Rome Statute which created the ICC to arrest Mr X and send him to The Hague. Take for instance the case of Mr Bashir (the Sudanese President)… if he were to step into Nairobi, it is our duty to arrest him and take him to The Hague because we are signatories to the treaty,” Mr Muite told Capital News.
The ICC was set up by the Statute of Rome sponsored by the United Nations to create international standards of jurisprudence.
“It was sponsored on the basis that the world has now become a global village and that it is not right for one to commit atrocities thinking that because you are in power none can reach you. It gives international jurisdiction to the International Criminal Court to investigate and issue warrants in countries that are not even signatories to the treaty,” he said.
The city lawyer and one time legislator said the crimes contained in the Waki report fit the ICC’s jurisdiction: “Kofi Annan is not just any other individual on the street; he is the former Secretary General of the United Nations. The International Criminal Court was created up by the UN when he was in office. So if he hands over that envelope, I cannot see the Prosecutor just ignoring it. It will be taken very seriously.”
Mr Annan chaired the Panel of Eminent African Personalities who – at the behest of the African Union – mediated Kenya’s political crisis in 2008 resulting in the coalition government of President’s PNU and Prime Minister Raila Odinga’s ODM.
The Sierra Leone Example
But the Chief Investigator of the Sierra Leone Truth and Reconciliation Commission Howard Varney said from his experience, the post poll violence in Kenya though disastrous may not necessarily warrant The Hague’s attention.
Capital News spoke to Mr Varney who told of the Sierra Leone example, a country which had its own Special Courts set up after 11 years of bitter civil conflict and the blood diamonds ordeal that involved neighbouring Liberia.
“I don’t want to belittle the elections violence but the fact of the matter is that the ICC is seized with matters in Central Africa and elsewhere whose magnitude far outweighs what happened here. It is entirely possible for the ICC to say Kenyan cases are not a priority,”
Mr Varney who is now the Director of the International Centre for Transitional Justice advised Kenya to opt for a local tribunal which he said was likely to yield better results.
“If you are calling for amendments to the tribunal Bill then you can’t at the same time be advocating for The Hague. Right now we believe it is appropriate and strategic to be pushing for the inclusion of the necessary amendments to make the statute on the Special Tribunal the best possible,”
Sierra Leone’s Truth and Reconciliation Commission completed its work in 2007 however The Hague still took up the matter of civil war atrocities in that country.
It has since put on trial the former president of neighbouring Liberia Charles Taylor, for backing the insurgency in Sierra Leone providing arms and training in exchange for diamonds.
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