Justice: Could we be headed to The Hague?


Published on 05/02/2009

By Peter Opiyo and Alex Ndegwa

The Hague edged closer for perpetrators of post-election violence as the Government suffered the latest setback in its bid to set up a local special tribunal.

Most MPs stayed away from the Chamber humming their new clarion call: “Let us not be vague, let’s go to The Hague.”

Consequently, Parliament postponed the vote on the Constitutional (Amendment) Bill 2009 to next week, because there was no quorum.

Mr Luis Moreno-Ocampo, ICC Prosecutor

Some of them expressed skepticism on the independence of the local tribunal while others were reported to be settling political scores. A constitutional amendment requires two-thirds of the vote, which is about 148 of 222 MPs.

Sensing the Bill would be shot down, Justice Minister Martha Karua appealed to President Kibaki and Prime Minister Raila Odinga to come to the House next Tuesday to marshal their troops.

The Constitution must be amended so that the proposed special court is not in conflict with the supreme law. However, the vote to conclude debate on the Bill could not proceed because only 52 MPs were present at 6.30pm.

Jumping the gun

Again sensing the stiff opposition the Bill had elicited from some members, including assistant ministers, Karua pleaded with the House to support the Bill. Assistant Ministers Aden Sugow (Public Service) and Cecily Mbarire (Tourism) were the latest members of Government to oppose it.

Karua accused those opposed to the Bill of jumping the gun, arguing it was wrong to oppose amendment of the Constitution because they did not fancy the Bill lined up next to set up a special tribunal.

She claimed the opponents did not have the courage to vote against the Bill and had resorted to absenting themselves from the House to deprive the proposed law of the requisite numbers.

Should the Bill be defeated, it would deal a blow to efforts to try suspects locally because it would require six months before its re-introduced.

The Justice Philip Waki-led commission issued a specific timeline within which the tribunal should be established to try post-election offenders, including the 10 prominent individuals suspected of bearing the greatest responsibility for the mayhem.

Should the local tribunal not take off, the International Criminal Court sitting at The Hague, Netherlands, would take over the mandate.

Those opposed to a local tribunal, have coined the rallying cry, ‘Let us not be vague, let us go to The Hague,’ saying they have lost faith in local institutions. The rebels claim it would be manipulated by powerful figures and its work would be subverted.

They point at inaction on recommendations by various commissions of inquiry such as the Goldenberg Commission to justify their fears of its impotency.

But the Justice Minister cautioned that The Hague would only bring to justice those who had committed crimes against humanity, if ever they are tried.

Dead end

“If we reject the special tribunal it means persons who killed, raped, maimed and destroyed property would go scot-free. Is that what we want?” Karua asked about 40 MPs present at the time.

Karua warned Parliament was walking the country to a “dead end” and likened rejection of the Bill to digging up trenches that will “trap us all.”

Karua said she was saddened the tribunal had been likened to other commissions. “We are setting up a special system that will not be like our normal justice system. The prosecutor, investigator and some judges will be hired from the international pool,” she said.

But it became apparent the Bill would fall through the trap door when temporary Deputy Speaker put the matter to conclude debate to the vote at 6.30pm. Even after he instructed the Sergeant-at-Arms to ring the division bell, only 52 MPs were in the Chamber, prompting him to postpone the vote.

Earlier, Foreign Affairs Minister Moses Wetangula led a renewed plea by the Government for support of the Bill that has had a bumpy ride in the House in the last three days.

Tourism Assistant Minister Cecily Mbarire and Sugow joined the ranks of the MPs opposing the Bill arguing Kenyans have lost faith in local institutions.

This brings the number of Assistant Ministers opposed to the Bill to five. Others opposing are Medical Services Assistant Minister Danson Mungatana, Wilfred Machage (Roads) and Asman Kamama (Higher Education).

Wetangula set the Government’s plea, arguing it was time to solve our own problems.

“We have a duty to sort out the mess we created. It is time we are confronted by the facts, it is time to restore the dignity of this House,” said Wetangula.

No confidence

But in opposing the Bill, Mbarire said: “I painfully oppose this Bill because people have no confidence in a local tribunal. Perhaps, we need to re-look the process and see what is right for Kenya.”

MPs Lucas Chepkitony (Keiyo North, ODM) and Thomas Mwadeghu (Wundanyi, ODM) also opposed the Bill, citing mistrust of local institutions.

But Ababu Namwamba (Budalang’i, ODM) supported the Bill, arguing that failure to establish the tribunal would be “end of efforts to stump out impunity”.

Nairobi Metropolitan Development Assistant Minister Elizabeth Ongoro said Kenya is not a failed State to warrant its citizens trial in The Hague.

Her sentiments were shared by her Education colleague Ayiecho Olweny. The House resumes on Tuesday, when the vote is scheduled to take place.

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