NAIROBI, Kenya, Feb 9 – A day before Parliament takes a crucial vote on a Bill seeking to entrench the formation of a Special Tribunal in the constitution, pressure mounted on the government to withdraw the contentious law, which was already facing opposition from Members of Parliament.,
Constitutional lawyers and members of the civil society agreed that the divisive Bill had numerous flaws that could result in a constitutional crisis and frustrate operations of the Special Tribunal.
“The Kenyan Constitution has a most important clause there… section 3, which declares it is the Constitution which shall prevail and any other law will – to the extent of the inconsistency – be deemed null and void. It is the most important law,” constitutional lawyer Paul Muite argued.
He said the Constitution Amendment Bill 2009 in its current form contravened the original laws of the land and required at least six key amendments which had been proposed by the Law Society of Kenya.
But Mr Muite said the proposed law was faulty by seeking to take care of many clauses which are in collision with the constitution by simply declaring ‘the Special Tribunal will not be working in contravention with the constitution.’
For instance if one was to use the Constitution for reference, they would argue that it gives the President the sole power to appoint judges, but another would use the law on the Special Tribunal for reference and say the President cannot make that decision alone but must consult the Prime Minister.
Another example: If the Constitution Amendment Bill 2009 is passed in the current form, the powers of the Attorney General would also be in dispute. One could argue that under the Constitution that the power to begin and terminate cases rests with the Attorney General whereas another could argue based on the Special Tribunal the mandate rests with a Special Prosecutor.
Mr Muite now wants the Constitution Amendment Bill 2009 which is due for a vote in Parliament on Tuesday to be looked at afresh, to “amend those sections individually and separately.”
He spoke as the Federation of Women Lawyers-Kenya (FIDA) and the Muslim Human Rights Forum lent their support for a local tribunal, saying it would ensure that both the masterminds of the violence and petty offenders were all punished.
“The local tribunal comes straight out of the recommendations of the Waki Commission and is a key mechanism for addressing impunity in this country,” FIDA Executive Director Patricia Nyaundi told journalists at a news conference.
Ms Nyaundi said taking perpetrators of the violence to the International Criminal Court should only be considered once the prospects of establishing a local tribunal had totally failed.
“As Kenyans we must work to restore confidence in our institutions. Parliament must ensure that the tribunal has adequate constitutional protection thereby restoring public confidence in our judicial system.”
The International Commission of Jurists Senior Programmes Officer Priscilla Nyokabi on the other hand told Capital News that the Constitution Amendment Bill 2009 and the Special Tribunal for Kenya Bill (that actually sets up the tribunal) should be withdrawn to facilitate amendments that would strengthen the investigations to bring all those implicated to face the law.
She said: “The right thing will be to withdraw the Bills to re-write them strongly; put all those provisions like the victim/witness protection properly in the Bill, and also properly shield the tribunal from political interference.”
She said the appointment of the judges should not be entirely left upon the President and the Prime Minister but Parliament should be involved.
Ms Nyokabi said the local tribunal was better than The Hague since the process at the ICC was long and there was no assurance that Kenya would be a priority.
Also supporting the formation of a local tribunal was Muslim Human Rights Forum Director Al-Amin Kimathi, who stressed in an interview with Capital News that the option if the International Criminal Court was taken, cases would drag for a long period.
“The Special Tribunal can handle the second group of perpetrators and even the third, but the ICC can only prosecute very few of the top guns,” observed Mr Kimathi.
“We have also seen from the conduct of the ICC so far that we do not have many cases tried there… the process is rather long.”
Mr Kimathi however emphasised the need to strengthen the Bill seeking to establish the Special Tribunal.
“Let’s go back and re-write the legislation of the Special Tribunal. Let’s have a forum here that is constitutionally mandated,” he said and added: “Let’s have a Special Tribunal that addresses the gaps and the loopholes that we have identified so far.”