The Special Tribunal Bill: Contributions by Rachel Shabesh MP, Boni Khalwale MP, David Ngugi MP, Kabando wa Kabando MP, Mohammed Affey MP, and Nderitu Muriithi MP on Wednesday 18th November 2009
THE CONSTITUTION OF KENYA (AMENDMENT) BILL
(Mr. Imanyara on 11.11.2009)
(Resumption of debate interrupted on 11.11.2009)
Rachel Shabesh MP on the floor
The plight of the Internally Displaced Persons
Mrs. Shabesh: Mr. Deputy Speaker, Sir, I rise to support this Bill by our colleague, hon. Gitobu Imanyara. There have been a lot of misconceptions and misgivings about this Bill. It is very unfortunate that we sit here as a House, professing to care about Kenyans. We speak about the plight of the Internally Displaced Persons (IDPs) and how to deal with impunity and yet when it comes to putting money where our mouths are, we do not see same commitment from this House. I am, therefore, urging my colleagues to look seriously at the issue of portraying our country as a failed State.
Just a month ago, Members of Parliament were all over the country speaking about how important it is for us to set up a special tribunal; that is, our own mechanism to deal with the issues of post-election violence. Today, the same issue is on the Floor of the House, but we do not see the same support. For how long are we going to push issues for the sake of political expediency and not for the sake of the people of this country?
women were grossly affected
The first time we debated this issue, I supported, with reasons, the proposal that we set up a special tribunal. It is the same reasons I want to expound on today. During the post-election violence, women were grossly affected. Many women were sexually violated; some of them contracted HIV/AIDS and others even got pregnant. There is a report that was compiled by women organizations under International Federation of Women Lawyers (FIDA) and CREW. The report shows clearly the injustices that women suffered during that time. The question we have asked many times is: If we do not set up our own mechanisms to deal with this issue, how will these women ever get justice?
impunity must be dealt with at the top and the bottom
We want to deal with impunity, even though it is at the top and the bottom. There is no way you will convince me that getting rid of three or four people will stop impunity. I believe that impunity must be dealt with at the top and the bottom. It is clear to me that the only mechanism we can use to deal with the policemen, who raped women and shot people, or the person who took a panga against a neighbor, is our own internal system.
This country needs to heal, but we have not started that process.
Are we going to experience the same violence come 2012?
Mr. Deputy Speaker, Sir, I feel very let down by this Coalition Government. This Government was constituted by the goodwill of Kenyans because it promised that it was going to put aside its differences for the sake of Kenya. It is obvious that they put their differences aside for their own sake. If, indeed, it was for the sake of Kenya, this issue would not have dragged on this much. We would not be in the second year of operation still dealing with the issue of post-election violence and never seeing closure. The Government, therefore, must be called out and informed that it has acted irresponsibly. It must tell us whether what we are seeing now is what we will see in 2012. Is this what they are promising Kenyans? Are we going to experience the same violence we experienced in 2007 come 2012? We have neither seen commitment from the line Ministries nor the two principals.
Kenyans are watching us. This is the true test of Kenyan leadership
As Members of Parliament who have been speaking on the issues of post-election violence, we are, therefore, saying that we are committed to speaking out on this issue, with or without the support of the Government. Kenyans are watching us. This is the true test of Kenyan leadership. The issue of post-election violence will remain a mark on the history of Kenya for the rest of our lives. The way we deal with it will be written in history. My colleagues and I want to be written in history as those who saw the real consequences of allowing people get away with impunity and allowing tribes to rise against other tribes. As politicians, we are ready to take responsibility for what happened during the post-election violence. We are willing to right the wrongs. We want to show Kenyans that there are Members of Parliament in this House who think with the masses.
look at the number of hon. Members in the Chamber today
It is obvious that if you look at the number of hon. Members in the Chamber today, you will realize that there are some who just do lip service. If we are going to be honest, let us stop shifting goal posts every time whenever, for us, it is political expediency.
we have lost the confidence of Kenyans.
Mr. Deputy Speaker, Sir, I am saying this because I want to appreciate that we have lost the confidence of Kenyans. The major reason this has happened is that we have failed to issue guidelines. We have failed to be clear on the way we want to deal with impunity in this country. We have failed to be clear on the way we want justice to be achieved in this country. Unfortunately, today, the young people of this country are better off listening to ambassadors and high commissioners in this country. Those are the people they think can give them leadership and yet we have a House of 210 Members. They feel we are not offering leadership. This is because when they look at the way we are dealing with issues, especially this kind of an issue that is critical, they feel that we have failed to offer leadership. We are now saying that, as Members of Parliament who are willing to stand the test of time, we want to offer leadership.
show that Kenya can control its own issues.
When this issue came to the fore, that is, at a time when Kenya was bleeding and almost split into two, there are those of us who said that we can deal with our own problems. We are not saying that we do not want the International Criminal Court (ICC) process to continue. In fact, it must continue because we are signatory to the Rome Statute. It is, therefore, an obligation that we have already signed to. However, ICC will not be solving our problems forever. If we go to the next General Election and something like this happens, we cannot, again, call on the ICC. We must show that Kenya can control its own issues.
[Mr. Deputy Speaker left the Chair]
[The Temporary Deputy Speaker (Prof. Kaloki) took the Chair]
We have police officers who raped women and shot people
Mr. Temporary Deputy Speaker, Sir, in conclusion, out there, we have police officers who raped women and shot people and yet they are still in employment – others have been promoted. Those people were involved in the post-election violence and they are known. We risk turning into a failed State, not only to Kenyans but also to the world, if we do not do what Rwanda, Uganda, and Liberia did. Why is Kenya unable to do what these countries did? It is because of lack of political commitment and goodwill. A few people will be held accountable for that and as far as I am concerned, they are the two principals of the Coalition Government which continues to collude to take away justice from its citizenry.
I support this Bill
I support this Bill because it is critical. Women will not get justice in any way other than through a local process.
Boni Khalwale MP on the floor
Dr. Khalwale: Mr. Temporary Deputy Speaker, Sir, I would like to thank you for giving me an opportunity to speak on this very important Bill. Before doing so, may I spend some time to thank hon. Gitobu Imanyara because he has put in a lot of work to make sure that this Bill appears before this House in its present form.
Hon. Imanyara is, indeed, a very good brain – I have no doubt about that. He has a great track record in this country. He is a wonderful and successful lawyer. In fact, he is a seasoned journalist and a tested reformist. Hon. Imanyara was actually the Secretary-General of Ford Kenya and, indeed, is one of the heroes of the second liberation. He is actually one of the few survivors of the infamous Nyayo torture chambers. How ideal that it is him who has penned this particular Bill.
Mr. Temporary Deputy Speaker, Sir, having said this, I would like to acknowledge that this is, indeed, a very remarkable week. Kenyans will remember that it was only yesterday when we launched the Harmonised Draft Constitution. Since not all of us could speak yesterday, allow me to join all those Kenyans who happily, witnessed that occasion; and make a small correction: That somebody, deliberately, forgot to mention the great history that was contributed in this process, by Messrs. James Orengo, Martin Shikuku, and the late Masinde Muliro, when they went to Kamukunji grounds on a pick-up vehicle. We must not also forget the person who drove that pick-up vehicle. Those were, indeed, the symbols of change that brought about multiparty democracy in this country.
what are Kenyans saying about our handling of the post-election violence?
We could make this week not only unique but also the finest week of the year if we resolve the issue of the post-election violence once and for all. It is true that when we are in this House, we are able to think on our feet and come up with very good ideas but it is also important for us to remember that we are exercising the representative role of Members of Parliament. If that is the case, what are Kenyans saying about our handling of the post-election violence?
Kenyans are saying the Hague is the solution
Mr. Temporary Deputy Speaker, Sir, I have listened to Kenyans from all walks of life through Short text Messaging Service (SMS). Hundreds of them are saying that the solution is The Hague. I have read on my Face Book address, and Kenyans are saying “The Hague!” I have listened to debate on FM radio stations and, again, it is a resounding case for The Hague. I have watched television stations’ poll results on our handling of the post-election violence and, again, it is an overwhelmingly case for The Hague.
As if that is not enough, if you go through the Mail Box in all the print media, you will see that the majority of Kenyans support The Hague option. I have attended funerals and church sermons. I have been to wedding ceremonies as well as to bars, where people drink busaa or beer. When they were sober or drunk, the people have always insisted that we must take The Hague option.
this Bill will create a loophole for the Executive
Mr. Temporary Deputy Speaker, Sir, having considered all that Kenyans are saying, I wish to join them in saying that this Bill will create a loophole for the Executive to manipulate the process of dispensing justice, as they have done in the past. I am, therefore, joining Kenyans in saying that The Hague will do just fine. The Hague is good. Let us take all of them to The Hague, not because of personal considerations but, because we live in Kenya, where the current Constitution may not be offering an appropriate environment in which to operate a special tribunal.
the Executive can, through the AG, interfere with the process
Forgetting the fact that the current Constitution has very explicit Sections limiting the Executive either directly or indirectly, in facing a challenge as big as this one, is not living to the realities of the moment. It is still possible that even after passing a beautiful Bill like the one that has been written by Mr. Imanyara, the Executive can directly or indirectly, through the Attorney-General, interfere with the process to the extent that we will get nowhere.
in Kenya, no “big fish” has ever been convicted
Mr. Temporary Deputy Speaker, Sir, it is a fact of history that in Kenya, no “big fish” has ever been convicted of any serious criminal offence. When you see a conviction in this country, it is because the man in the dock is a “small fish”. Are you telling me that what we saw on the video clips that were replayed at the Kenyatta International Conference Centre (KICC) yesterday was not witnessed by the security agents of this country?
You want to focus on the “small man”
Video tapes of the men, who pulled youths out of matatus and cut them into pieces, as we saw at the KICC yesterday, are still there. The security organs were there. What law is missing in this country today that prevented the security organs from arresting those people? It is a question of goodwill. All you want to do is to go for the “small man” – the watchman – who was near the scene when that was happening, and tell him: “We saw you on video”. You want to go for the headmaster of the primary school in Kisumu, where a teacher died. You want to focus on the “small man”.
remain consistent and say that The Hague is the best option
Mr. Temporary Deputy Speaker, Sir, so that we are not seen to be passing laws to just suit the emotions of the moment, I want to ask Members of Parliament: Today, you appear to have changed your mind. Where was your mind when this House, resoundingly, said that the appropriate option was The Hague? This is the same Parliament that said, a few months ago, that the best option was The Hague. We cannot turn 180 degrees and, all of a sudden, say that we were collectively wrong. At that time, we were right. We must remain consistent and say that The Hague is the best option.
The Hague will take hundreds of years to prosecute these cases
Some Members of the Cabinet have treated Kenyans to a circus on this particular issue. Kenyans will remember that at one time, these same Members of the Cabinet went on a chest-thumping spree across the country, after we had voted in this House, telling Kenyans: “What we want is a special tribunal.” After some time, the same persons changed their positions and said: “No, we do not want a special tribunal. We want The Hague, because The Hague will take hundreds of years to prosecute these cases.”
Truth, Justice and Reconciliation Commission
Mr. Temporary Deputy Speaker, Sir, the same Ministers went to State House for a Grand Coalition Cabinet meeting, where they said: “We do not want a special tribunal or The Hague. We want the Truth, Justice and Reconciliation Commission (TJRC)”. After that meeting, they organised a fantastic Press Conference that was addressed by both the President and the Prime Minister. Where are we taking the country? The same persons are today saying that they want both The Hague and special local tribunal options. What are they telling Kenyans?
Taking this country round in circles is demonstration of lack of goodwill
Taking this country round in circles is a clear demonstration of lack of goodwill. The best laws in the country, and in the world, will get nowhere when they are not clothed in impeccable goodwill. Since there is no cloth that is clean enough to fit the description of goodwill in this particular case, I submit that, for the benefit of history, they must be taken to The Hague, so that the “small fish” can realise that this Parliament is not using this opportunity to silence them through our collective representation; so that after we have created a “bush” in which the “big fish” will hide, we start playing to the gallery by having “small people” arraigned in court in the name of making them to serve as an example to the rest of Kenyans.
Parliament must, desist from competing with the Cabinet, for bad manners
Mr. Temporary Deputy Speaker, Sir, Parliament must, therefore, desist from joining in the competition, with the Cabinet, for bad manners. Parliament must not compete with the Cabinet in indecisiveness. We must not compete with the Cabinet in showing callousness in respect of those who died, those who lost their loved ones, and those who lost their livelihood and homes. We must not, as Parliament, join in demonstrating callousness in respect of all those who have lost their pride of living in a community of functioning nations of the world.
We must speak in one voice. No issue of double speak
Mr. Temporary Deputy Speaker, Sir, we must have a substantive reason to oppose this Bill. We should demonstrate to the two principals; the President and the Prime Minister that this House does not engage in double-speak the way they have been doing on this issue. We must speak in one voice. The issue of double- speak is not here.
Special Tribunal would operate within the context of the current Constitution
We must also remind ourselves that this Special Tribunal would operate within the context of the current Constitution. If, maybe, we have promulgated the new Constitution, then one would imagine a situation where a new scenario would obtain. But not in the current Constitution!
people who steal chicken end up in Prison for five years
Mr. Temporary Deputy Speaker, Sir, having said all the above, I think Members should find solace in the fact that trial of ordinary Kenyans has never been a problem in this country. Even small people in Kakamega who steal chicken always go before the magistrate and end up in Shikusa Prison in Kakamega for five years. Trying small people has never been a problem in this country. Therefore, if trying small people is not a problem in this country, then we should use the existing criminal judicial system to address the so called small offenders of the post-election violence.
arrest the Head of State while he is in office.
Finally, I would like to refer to Section 11 of this Bill where it contemplates in Sub-section 3(ii) a situation whereby, under the current Constitution, you arrest the Head of State while he is in office.
Section 11(3) (ii) says:-
“Immunities or special procedural rules which may attach to official capacity of a person whether under national or international law shall not bar the Tribunal from exercising jurisdiction over such a person with respect to the Vienna Convention”.
I beg to oppose.
Mr. Temporary Deputy Speaker, Sir, you are, therefore, saying that you sell the Republic of Kenya just because you do not want to address these people who you know. You do not want to send them to the Hague. You want to set the Republic of Kenya on a rollercoaster, whereby you have arrested the Head of State. This is mischief; I beg to oppose it.
With those few remarks, I may be joined by Members who subscribe to the welfare of the small man in this country.
Mohammed Affey MP on the floor
Mr. Affey: Thank you very much, Mr. Temporary Deputy Speaker, Sir, for giving me this opportunity to contribute to this very important Bill.
The spirit resonates with the majority of Kenyans.
When the Government brought a similar Bill to this House a few months ago, I voted against it. However, today I stand to support this one. Over the last few months, I have reflected very deeply on matters that are current in the country. I have not changed because this Bill will see the light of the day. I have changed because of the spirit in the Bill itself, not necessarily the text, wording or its application in the country. I thank Mr. Imanyara for bringing this Bill before the House. The spirit resonates with the majority of Kenyans.
Government has sufficient laws to try perpetrators today
Mr. Temporary Deputy Speaker, Sir, the reason for this is simple: Yesterday, we were given an opportunity by the Committee of Experts (CoE) to see a clip, reminding us of a very serious issue in the history of this country. I agree with Dr. Khalwale, that the Government has sufficient laws under the current Constitution to try Kenyans who participated in the killings of innocent people. These are the people who did what we saw on our television screens. The Government has sufficient mechanism even to try them today. However, because in this country the Government has refused to implement the law, we have invited foreigners to take over leadership of this country. It is foreigners who are driving the reform agenda and trials. I want to disagree with Dr. Khalwale that this Bill, as designed by Mr. Imanyara, does not preclude the fact that those who were responsible for crimes against humanity can still end up at the Hague.
all of us felt compelled to give justice to these victims.
The Bill was carefully crafted. The worry we had last time was that we had a Government which was determined not to prosecute anybody. The only option all of us had was the one the international community provided. Nothing had stopped the Kenyan Government from prosecuting those involved in crime. But because they refused to do so at the time they brought a similar Bill before us, all of us felt compelled to give justice to these victims. The only way to give justice to them was to find other options. Since we had failed as a country to try them, was there a possibility to try them elsewhere? That is how we rejected the Government Bill.
Head of State is not synonymous with Kenya.
Mr. Temporary Deputy Speaker, Sir, now that this Bill is hybrid, it gives a possibility for those of us who feel— The Head of State is not synonymous with Kenya.
This should be very clear. God forbid if we have a Head of State who blatantly breaks the law and because he is the Head of State you cannot try him, we are going to lose the country. Nobody should ever tell us that crimes committed by sitting Heads of State are synonymous with Kenyans. It is not! We must have a distinction here.
The Bill covers and addresses the issue of impunity.
This Bill is attractive because it gives visible justice to the victims. The Bill addresses the issue of compensation in a major way. The Bill covers and addresses the issue of impunity. Therefore, if we had our way, we would have an opportunity to try Kenyans who were involved. If this fellow called Mr. Moreno Ocampo came here and said he is only interested in three or four people, they could not have been able to organize the massacre we had in the country. They could be more. Therefore, if the majority will not find the possibility to be tried, this Bill provides the way out.
We must deal with our past in a manner that it will never be repeated
As representatives of the people of Kenya, we are saying that we must be sensitive to those people who are still languishing in Internally Displaced Persons (IDPs) camps, two years down the road. It is not an easy matter as some people may think. I chair the Committee on Equal Opportunities which recently visited Rwanda. We visited their memorial sites. Rwanda is just close to us. What happened there could easily happen here. Why should we just brush it aside and pretend that nothing is happening here? Right now, we are discussing the Draft Constitution as though nothing has happened in the past in this country. We must deal with our past in a manner that it will never be repeated. There is a lot of impunity that happened in this country. Personally, I sympathise with all those Kenyans who have been displaced from their homes, particularly those who have left the Mau Complex. We want to get some reasonable justification from the Government as to why people who have lived in the Mau Forest for many years have been evicted even before an alternative land had been found for them. They are now living by the roadside. We, as leaders of this country, are saddened to see on the television screens children and mothers being rained on by the roadside. We belong to the Government that cares. In fact, we have taken this country, unfortunately, to a path that we shall end up regretting. When you take the laws of your country very casually the way Somalia and Rwanda leaders did, it is the Ministers and Presidents who were the first people to take the first flight out of those countries. In fact, if you go to the Daadab Refugee Camp, you will be confronted by a number of former Ministers, generals and Members of Parliament who are now languishing in poverty and desperation. When they were in leadership, they took the laws of their country very casually.
We are now not in charge of our affairs
My personal position is that the leadership of this country has been taken away. As a Member of Parliament, I suggest that we find a way of getting it back because we have lost it. We are now not in charge of our affairs. We could be in this Parliament talking or a Minister flying a flag, but we have no control over the affairs of this State. It has been taken over; it is now being discussed in Washington DC and in other capitals as though this country has no leadership.
The fact that we have failed to use the laws and the Constitution to try crimes that we saw being committed in this country, is an indication of a collective failure of leadership in this country. All of us are guilty of this.
I want to thank Mr. Imanyara for giving us an opportunity to reclaim our position.
sense will prevail when we put a special tribunal in place
This is an opportunity to see whether, in fact, sense will prevail when we put a special tribunal in place. Sometimes I ask myself whether it is important to do so when I have seen on television screens, somebody hacking a Kenyan to death. Why should we be required to establish a very special tribunal to try that person? Let us be serious as a country and reclaim the leadership given to us by the people of this country.
I support this Bill and congratulate the Mover.
Mr. Temporary Deputy Speaker, Sir, I want to congratulate the Committee of Experts on Constitutional Review because they have done a good job even though there are certain grey areas that we need to address. We will discuss this document within the 30 days given by Committee of Experts on Constitutional Review. I want to plead with the House to make sure that we do not go into the next general election before we have fundamentally reformed our laws because that is where we have a weak point.
With those few remarks, I support this Bill and congratulate the Mover.
David Ngugi MP on the floor
This Bill provides both for Hague and a Special Tribunal here.
Mr. Ngugi: Thank you, Mr. Temporary Deputy Speaker, for giving me this chance to also contribute to this Bill. In so doing, I want to salute the courageous Members of Parliament since Independence who have at very critical times spoken without fear or favour on behalf of people of this country. Change was never brought by people who just followed the wave or by the people who never read even a Bill like this to understand it, it was brought by those who read widely so that once they contributed they did so from an informed position. I have read this Bill no less than three times. I have discussed it with the lawyers and understood it. This Bill provides both for Hague and a Special Tribunal here.
Section 5(1) says:-
“Without prejudice to (1) above, the Tribunal may invoke Article 14 of the Rome Statute if deemed necessary and for the avoidance of doubt, it is declared that the person or persons on the list submitted to the International Criminal Court by the Chair of the Panel of Eminent African personalities shall be deemed to have been referred to the International Criminal Court.”
Kenyans were hacking each other to death and police shooting them
It can never be any clearer than this. Those people who are in the Waki list have been referred to Hague. Yesterday when we were at KICC witnessing the launch of the Draft Constitution, we were shown a clip where Kenyans were hacking each other to death and police shooting them. Many of us shed tears and yet, people do not want justice meted on those people who maimed others, raped or shot others dead. They want to play politics. They want political expedience out of this unfortunate situation. When a similar Bill was brought to this House, most of the people who were guilty preferred the Hague option. They thought Hague option will never happen. They believed it will take years and, probably, it will not happen and they will go scot-free.
Hague can only prosecute a handful of people
The other side voted also for Hague because we had no confidence in the Judicial system in this country. So, the two sides converged to prefer Hague option to local tribunal. However, Hague can only prosecute a handful of people. What about those other people who committed crime against humanity? We must provide for a mechanism to try them without impeding or creating roadblocks for them as would happen in the current Constitution where we take people to court and then they ask for constitutional reference and the matters drag forever without being concluded. This Special Tribunal is so important. It will be contained in an amendment to the Constitution such that when this Bill is passed and assented to by the President, nobody will move to the High Court for constitutional interpretation.
We must punish impunity to deter others
We have been speaking about impunity. If we do not punish the hundreds of people who participated in this very heinous crime, are we ending this impunity? The 2012 elections may be much worse than what happened in 2007. If we do nothing to deter the perpetrators and other people who contributed to the post-election violence; those who raped and, maimed others, 2012 elections could be much worse. That is why it is so important that we pass this Bill, even if only to guarantee peaceful elections in 2012.
this Bill is the only legislation that provides for victims’ compensation.
Mr. Temporary Deputy Speaker, Sir, the other beauty about this Bill is that it is the only legislation in this country on the table now that provides or calls for victims’ compensation. The first Bill that was brought to this House by the Government did not provide or call for compensation of the victims. This Bill calls for compensation of thousands of people who were either raped, murdered and their property burnt or taken away. If we are a country that believes in justice and the right of law, then my life should be equal to that of any other Kenyan. If I lose my property, even as the Constitution guarantees that the Government should protect the right to life and property, then this Bill is on the right course in calling for compensation of the victims.
We are signatories to the Rome Statute
Mr. Temporary Deputy Speaker, Sir, we must be honest with ourselves. Let us not be hypocrites. We are signatories to the Rome Statute. Last year, this House enacted the International Crimes Act. In the International Crimes Act, we appended the Rome Statute. What this means is that there is nobody; whether the two Principals or any other person in Kenya—
Mr Mbadi interjects:- put this Bill to vote and then we do away with it, because it appears that there is no interest in it
Mr. Mbadi: On a point of order, Mr. Temporary Deputy Speaker, Sir. This Bill before us is a Constitutional Bill and I wonder whether we are really utilizing our time effectively. Personally, I do not like being a hypocrite. Why can we not just put this Bill to vote and then we do away with it, because it appears that there is no interest in it. I am suggesting, with your indulgence, that you call the—
The Temporary Deputy Speaker (Prof. Kaloki): Order, Mr. Mbadi! We have not reached that part.
David Ngugi MP on the floor
thank you for protecting me and the rights of Kenyan
Mr. Ngugi: Mr. Temporary Deputy Speaker, Sir, thank you for protecting me and the rights of Kenyans; thousands of them who died. Some of us lost relatives and so, we can feel the pain.
every Kenyan’s life should be equal to that of every other Kenyan
Mr. Temporary Deputy Speaker, Sir, the Rome Statute and the International Crimes Act do not provide immunity for anybody. I would want to go on record as having said that every Kenyan’s life should be equal to that of every other Kenyan. If one Kenyan commits a crime it does not matter their position in society. They should be able to face justice just as well as the man on the streets.
men of courage and conviction will pass this Bill: I beg to support
Mr. Temporary Deputy Speaker, Sir, we have the Truth, Justice and Reconciliation Commission (TJRC). We are supposed to be reconciling and yet, all we are hearing in Rift Valley are war cries. Is this how we are going to reconcile? The only way to reconcile this country, call for compensation for the victims and guarantee peaceful 2012 elections is for us – men of courage and conviction – to pass this Bill and be on the right side of history when we are judged by it.
Mr. Temporary Deputy Speaker, Sir, with those few remarks, I beg to support this Bill.
Kabando wa Kabando MP on the floor
The Assistant Minister for Youth Affairs and Sports (Mr. Kabando wa Kabando): Thank you, Mr. Temporary Deputy Speaker, Sir. The Bill before the House is largely a repeat of the Bill that we had some time back, which was hugely opposed and rejected. But we do realize that there are sections that have improved on the material quality of the Bill.
There is an apparent disinterest in this Bill,
Mr. Temporary Deputy Speaker, Sir, more important is the spirit of the House. Without contemplating the results of this Bill, we need to be very candid and frank. There is an apparent disinterest in this Bill, particularly so because of the works that have happened, and I think it provides a great lesson. The Mover has done good research. He has incorporated sections that need to take it to a new level and bring the hybrid process, so that trials and prosecutions are undertaken not just locally, but if need be, through the Rome Statute, at the international level.
Members of Parliament threatened , that if they do not support this Bill they will be betraying Kenya
Mr. Temporary Deputy Speaker, Sir, the motive is as important as the results. The process is as important as those executing it. A word of caution is that I do not think there has been good lobbying and networking for this Bill from the very beginning. There were Press conferences outside the House and statements in rallies, in villages, that sort of threatened Members of Parliament, that if they do not support this Bill they will be betraying Kenya. As a political scientist, I would like to dissect the science in this Bill.
This House must rise to its expectation. We have seen important issues causing shifts that many times confuse our very people that we want to help. We have all seen certain Motions demarcated in the way they are voted for, because of ethnic and sometimes party lines. We have seen in this House individuals shouting loudest about the need to end impunity and deal with corruption, but the same individuals not taking a firm position when individuals from their ethnic groups are concerned. It is an issue that should lead us to serious soul searching. This is because it is not only about your individual conscience, but also the political chemistry and anatomy of the legislative agenda that we want to execute.
Mr. Temporary Deputy Speaker, Sir, I say this with a heavy heart because the Mover of this Motion stands shoulders high among the heroes of reforms, inspired by The Nairobi Law Monthly, which was actually the very exemplification of the platform where reformist gathered intellectually and ideologically to feed the nation to move forward.
I appreciate the Mover’s courage.
Also, without risking discussing the character of a colleague, I appreciate the Mover’s courage. While many other people went into hiding when there was a crackdown on reformists in 1990, I have evidence that the Mover of this Motion was the only one who did not go into hiding. He drove from his house to a police station in this country and delivered himself to the police to be jailed for calling for multiparty politics. It is only Mr. Gitobu Imanyara who did so. But faults are also found in individuals. Perhaps, for all of us from the Government side and the Back Benches, when we are moving Motions we need to have tact. We need to expand goodwill and strategically harvest from the diversity of individuals that constitute this House.
the strategy to bring this Bill to this House was not good
Therefore, I submit boldly that the strategy to bring this Bill to this House was not good. I can predict, and I am not likely to go to the detail that the goodwill may have adversarial effect on the outcome of this Bill. It is an important Bill. It is a milestone!
it is a ritual after every election
Mr. Temporary Deputy Speaker, Sir, we have said that we have to be consistent. We have come to this House; we have supported the Special Tribunal, as a first step towards trying the masterminds, the perpetrators, the sponsors and the promoters of violence after the elections. This is not about 2007 or 2008! The culture has been developed in this country! There was violence during 1992 election in Likoni and in the Rift Valley Province. It is like it is a ritual that after every election, those particular areas in this country cannot be touched!
Kenyans had been killed day and night, while the Commander-in-Chief of the Armed Forces and, the CEO of this country did nothing
Sometimes I hear individuals speaking, including the former Chief Executive Officer (CEO) of this nation, talking about violence and yet during his reign, Kenyans had been killed day and night, while he was the Commander-in-Chief of the Armed Forces and, the CEO of this country. He did nothing. I think we need to have courage; and also ask all those, who have been in reign in this country, to sometimes shut up, if they failed when they had the responsibility to lead this country and to execute programmes that could terminate impunity. It is important for us to have that courage and allow this House and this Government to do what it can to register its success or failure.
madness and insanity bedevilled this country because of our political irresponsibility
Mr. Temporary Deputy Speaker, Sir, in 1997, the same scenario was repeated, but in 2002, because, perhaps, some people thought that there was diverse investment and any outcome would benefit them, it was on a lesser level. Even today, we are here as national leaders, even as late as yesterday when we witnessed what was presented by the Committee of Experts on Constitutional Review, as an example of the madness and insanity that bedevilled this country because of our political irresponsibility, we still go and say that, those who died in the church, either committed suicide, or it was an accident. A lot of nonsense has been perpetrated and, we are saying, in order for this impunity to come to an end, we must deal with issues with courage.
foreigners are not interfering with this country, they fund us
Mr. Temporary Deputy Speaker, Sir, I am one of the Members of Parliament who do not agree that foreigners are interfering with this country. If you go to Treasury, you will realize that a lot of programmes are being funded by the multilateral companies. If you go to the Office of the Prime Minister, the strengthening of that office includes resources from America. If you come to this House, including this live coverage by Kenya Broadcasting Corporation (KBC), it is being facilitated by the United States Agency for International Development (USAID). Even our own Press Centre in this Parliament, the supreme law making body in Kenya, the Press Centre here was actually opened by the American Ambassador to Kenya and the resources used from the American people to build this Parliamentary Press Centre.
doublespeak and hypocrisy
Mr. Temporary Deputy Speaker, Sir, we have gone with our bowls everywhere in the world asking for relief food. In fact, we called ambassadors and other foreign agencies to a special conference hosted by the President and the Prime Minister to tell them how hungry Kenyans are and we have gone there with bowls to ask for cash. Our chiefs in the political ladder, the President, the Prime Minister and the Vice-President, have gone to every capital city in the west and east; asking for partnerships and scholarships. Therefore, this doublespeak and hypocrisy now going round asking that we do not allow ourselves to be interrogated or interfered with is not consistent and we need to be very firm.
Mr. Temporary Deputy Speaker, Sir, protect me from the smiles of these hon. Members.
we need as a beginning a heavy whip from the international community.
It is my submission to this House that what we need as a beginning is a heavy whip from the international community. The community we asked to send His Excellency Kofi Annan as the eminent African, to come here with Graca Machel and His Excellency Benjamin Mkapa, former President of Tanzania—
point of order
Mr. Affey: On a point of order, Mr. Speaker, Sir. I am trying to follow the contribution of my good friend. I do not know whether actually he is supporting the Bill or he is not. He is my friend and I want to know what he is contributing on.
Kabando wa Kabando MP on the floor
The Assistant Minister for Youth Affairs and Sports (Mr. Kabando wa Kabando): Thank you, Mr. Temporary Deputy Speaker, Sir. Mr. Affey is still in an ambassadorial mood. I think we should dispatch him to Somalia to continue with the work that he was engaged in.
Thank you, very much.
The Temporary Deputy Speaker (Prof. Kaloki): Hon. Kabando wa Kabando, are you supporting the Bill or not?
I oppose this Bill.
The Assistant Minister for Youth Affairs and Sports (Mr. Kabando wa Kabando): Mr. Temporary Deputy Speaker, Sir, I am coming to that statement and I have every right, as a political scientist to build anatomy of my statement, and you must be patient and consume this information. Therefore, because we have done things that have been facilitated by our international friends, and because we have a national accord that has brought this Coalition Government together and because as Parliament, we have enjoyed facilitation and, even escalation of our capacity by the international community— But, because we have failed collectively to do certain things that can make a foundation for good governance, and because we have all shown doublespeak and confusion, even making statements that actually contradict what we have agreed to do or what we stated yesterday, my submission is that what we need is a very strong international whip; those interventions that will allow us have logic and rationality that will put us on a pedestal of visibility where we can be seen to be a nation that is actually in control. But to pretend otherwise, is clientele deception and it cannot endure. This Bill seeks to do two things that are necessary to punish those who perpetrated post-election violence. But it will be hypocritical for us to pretend that in this Government and in this Cabinet, all of us are innocent. It will be hypocritical for us even in this House, we who could not talk to each other for the better part of last year, some of who celebrated the massacres that were happening and issuing statements. My declaration is that, what we need is a whip that this House called for the prime suspects. That would be the biggest and the most significant message to be taken away. There should not be any fear or any ethnic or Government protection.
Mr. Temporary Deputy Speaker, Sir, I want to register that, last year, many of these Members, and the country knows that I was a recipient of a communication from the American Ambassador supposedly to explain my role in promoting peace and ethnic reconciliation in the Republic of Kenya. I never sought support from any Member of Parliament from my region, from my ethnic community, Parliamentary Group nor did I seek any information or assistance from Ministers or from the President. I dealt with it personally, as a son of a woman! Through that, I travelled to America and gave an address during an invocation as the Chief Guest at the State University of New York, because I was sure of whom I am. The business of rushing to your ethnic group, making declarations and saying that your ethnic group is being finished, your religious community is being affected, or your political party is being affected is all nonsense, pettiness and triviality that cannot hold. Let there be a first step of arresting and trying perpetrators upon comprehensive investigations which will be done by Mr. Ocampo.
However, we have heard people in Government and in Parliament talking from the crescendo of their village hills ,saying that they will not listen to President Obama, they will not listen to Dr. Anan and that they will not listen to Mr. Ocampo. That is a shame! Dr. Anan is an eminent African. We are the ones who called him here. Kenyans know that he brought a resolution to our dispute. President Obama is a celebrity, internationally, and more so in Kenya, being the only country that set aside a public holiday upon his election. Our CEO, the President and our coordinator and supervisor for Government, the Prime Minister, wrote a letter within 24 hours to congratulate him when he was given the Nobel Peace Prize. Therefore, let us not blame Ocampo, Obama or even Dr. Anan. Wakati wa kuubeba msalaba, your cross, is now.
I oppose this Bill.
Mr. Mututho: On a point of order, Mr. Temporary Deputy Speaker, Sir. Is the hon. Member in order to speak in Sheng when he is supposed to be speaking in English?
The Temporary Deputy Speaker (Prof. Kaloki): You should speak in one language.
The Assistant Minister for Youth Affairs and Sports (Mr. Kabando): Mr. Temporary Deputy Speaker, Sir, I can only withdraw. However, I explained myself in English.
The Temporary Deputy Speaker (Prof. Kaloki): Mr. Kabando, could you withdraw?
The Assistant Minister for Youth Affairs and Sports (Mr. Kabando): Mr. Temporary Deputy Speaker, Sir, I have withdrawn. I do that humbly and in acknowledgement that I have given Mr. Mututho a few lessons in Kiswahili.
Voting was made criminal because we belonged to ethnic groups.
I will conclude by saying that I oppose this Bill because my conscience and foresight tells me that it is unlikely to have any impact. I, therefore, call upon the Mover and those who have supported it to take solace and consolation in the fact and reality that the dawn of justice being done to the girls and the women who were raped, the poor victims whose purported crime was only to have voted otherwise, or just because we did not have evidence of how somebody voted— Voting was made criminal because we belonged to ethnic groups. Perhaps, voting was not accepted by certain people because it did not measure to their criteria.
These are weighty things. I can see the confusion that we have, not just in the House, but everywhere about this matter. That is why there is no single position of the Government. Therefore, nobody should claim to speak on behalf of the Government of Kenya with regard to this matter. No one should claim to speak on behalf of a Parliamentary group. No one can claim to speak on behalf of any caucus. The message must come out because the consolation and solace is built on pain and not because people do not want to support this Bill. Those who are the main beneficiaries of the post-election violence— Evidence will come out and reality will dawn on them that they should never repeat those actions.
nothing that prevents our courts from trying those who were executing people in the streets and those who were carrying pangas
There is nothing that prevents our courts from trying those who were executing people in the streets and those who were carrying pangas. That will be done. We can do it because there is nothing that prevents the Attorney-General of this country from carrying out investigations even today. I do not know why we should be seeking protection of any office.
I strongly oppose
I strongly oppose, so that we move to The Hague.
Nderitu Muriithi on the floor
The Assistant Minister for Industrialization (Mr. Muriithi): Mr. Temporary Deputy Speaker, Sir, I think as Kenyans, we must ask ourselves two fundamental questions. One, in January and February this year, a similar Bill was before this House.
People made very passionate arguments and some made very technical arguments. We must start from there and ask why people were anxious about the Bill as it had been presented at that time. One of those reasons was the fear that the process was not insulated from the ability of the Attorney-General to take over matters and extinguish prosecution. You can well understand why Kenyans felt that way. This is because we have a history of the last 18 years where cases have been before court and the State Law Office has entered nolle prosequi. Therefore, you should understand Kenyans, and their representatives, when they say that if you were serious about this matter, then in the very least, you must have shielded a special tribunal from the authority of the Attorney-General, which he derives from the Constitution. Therefore, I am surprised that those who oppose this matter now do not wish to recognize the fact that this issue has been successfully dealt with. This is a constitutional amendment and much of it is schedules or annexures.
ICC forces will take place with or without this Bill
Mr. Temporary Deputy Speaker, Sir, there is also a suggestion that if we do not pass this Bill, the ICC will continue with its business. Nothing could be further from the truth. The ICC forces will take place with or without this Bill. The passage of this Bill will not stop the ICC from carrying out its duties under the Rome Statute. So, whether we pass this Bill or not, the ICC, by international conventions, is expected to proceed with its own processes. The ICC does not need direction from those of us who are in this august House or this country. The processes of the ICC must, and will, continue. Therefore, to suggest that we should not pass this Bill so as to allow the ICC to do its work is far from the truth.
fundamental and unshakeable contract between me and the State that it is for protection of my life.
Mr. Temporary Deputy Speaker, Sir, I agree with Mr. Kabando wa Kabando in his suggestion that we have accepted, in so many spheres of our life as a nation, foreign help, and even the language that I am speaking to you now, is not our choice. Even the names that we call ourselves like Fredrick, Moses, Ephraim and so on are borrowed from foreign cultures with no meaning to us. Therefore, I agree with Mr. Kabando wa Kabando’s sentiments that having borrowed so heavily from the entire world, why do we find it convenient every now and again to say that we do not wish the rest of the world to speak to us about those things that we should do and about the fact that we refuse to live by the rule of law. We must ask the question, what is the purpose of the State? Why do you, as a citizen of Kenya, agree to live under this Constitution? As a citizen, I give up my right to walk around with a bazooka for the cardinal, fundamental and unshakeable contract between me and the State that it is for protection of my life.
life is the most fundamental right.
We are on the dawn of the new Constitution which shall also say that life is the most fundamental right. Therefore, if we as hon. Members, come to this National Assembly and swear to protect the Constitution, which guarantees the individual his or her right to life, how do we in good conscience not punish those who take the life of the Kenyan citizens? How can we, in good conscience, stand here and oppose any measure that seeks to bring justice to Kenyans?
How can we stand in the way of a process that seeks to punish those that refused to respect the very Constitution that we swear to defend?
Mr. Temporary Deputy Speaker, Sir, this issue is at the heart of whether we wish to have one nation and one state, which respects the sanctity of life. As a resident of the Rift Valley, I was moved from Eldoret in 1992. My house was brought down at Burnt Forest and my brother was killed. Today, I eke out a life in Nairobi, Nakuru or some other town, and the State expects me to pay tax. The same State does not live up to the expectations that it protects my life. How can we in good conscience stand in the way of a process that seeks to punish those among us that refused to respect the very Constitution that we swear to defend?
respect for the rule of law
Mr. Temporary Deputy Speaker, Sir, the foundation for prosperity of this country must be the respect for the rule of law. If we, as a nation or a Government, acting on behalf of the people of Kenya, are not willing to respect the sanctity of life, or who take the lives of others and destroy their property, we cannot, and will not, move forward in prosperity. I think that a lot has been said as to whether we should have a special tribunal, and whether or not the current laws allow for the process of prosecuting those who are involved in these issues.
that all of us, as representatives of the people of Kenya, pass this Bill
We know that we got to where we got last year because we had lost faith in some of our key institutions and the ability to find justice. This Bill sets up a mechanism to restore faith in us and shield our processes from vagaries that have existed before. So, I urge that all of us, as representatives of the people of Kenya, pass this Bill and expedite the process. We know that the International Criminal Court (ICC) process, as good as it may be, will deal with only a few individuals.
you cannot break the law by taking somebody else’s life, burning his or her house or taking his or her cow away and expect to get away with it.
We know that there are many more who need to see justice done. So, we have a choice to make as to whether we want communities to have the faith to live in peace in this country or not. As the leaders of this country, we must be willing to take that choice and pass a message to the communities, not just in Rift Valley, but all over Kenya, that you cannot break the law by taking somebody else’s life, burning his or her house or taking his or her cow away and expect to get away with it.
we wish to live with one another in a civilized fashion
As a nation, if we wish to live with one another in a civilized fashion and without having to walk around with machetes and bazookas, we must be willing to live by the rule of law. That is quite straightforward. So, we can talk here or castigate this or that idea, but ultimately our wish is to build a country that is prosperous and which has middle class income, industrialized and that will have a high quality of life by 2030. How can my life be of high quality if I cannot walk freely in this country and buy property and live in peace? How can we have a high quality of life if certain segments of our society are excluded from living in certain parts of the country? How can we have a high quality of life?
Why is it that the justice system has not been able to deal with impunity
Mr. Temporary Deputy Speaker, Sir, we have spoken a great deal over the last 18 months about impunity. What has brought about that impunity? Why is it that the justice system has not been able to deal with impunity? I want to submit that the very structure of law enforcement in this country leaves the process open. For example, the State Law Office is both the prosecutor and defender of the Executive. So, if a member of the Executive is alleged to have committed an offence, the State Law Office, must at the same time, prosecute and defend that member of the Executive. No wonder that for a long time there has been conflict arising from the State Law Office being the prosecutor and the defender; this has resulted in very many crimes remaining unpunished.
this matter requires a special process, which can be insulated
Mr. Temporary Deputy Speaker, Sir, even though the approved establishment for magistrates in this country is in the order of 501, we are operating with 250 in office. So, how do we expect to provide justice, or how do we expect to dispense timely justice? No wonder that the number of judges in this country is less than half of what is already the approved establishment in the books. I think we have to be honest with ourselves and accept that this matter requires a special process, which can be insulated from the existing rigidities in our system. This is a process that can be insulated from misuse; it is a process that can restore the faith of the citizen in the ability of the State to do that which is the most cardinal responsibility of the State: to protect life.
If you cannot protect the life of one person then you cannot protect the life of many
Mr. Temporary Deputy Speaker, Sir, the world over, you will see commanders or governments sending a whole brigade to go and recover a single citizen, and taking the risk that a whole brigade could actually be wiped out. If you cannot protect the life of one person then you cannot protect the life of many. I want to urge my colleagues to take this matter seriously, and accept that the only way we shall restore credibility of the State and restore the faith of citizens in it is if we are willing to punish wrongdoers, and if we can look each other in the eye and tell each other that they are wrong. If you have broken the law you must face the consequences.
that we can break the rules, but there is no consequence.
Mr. Temporary Deputy Speaker, Sir, impunity is not just at the top level of leadership of this society. Impunity is everywhere at every level of society. Every time we sweep issues under the carpet, we increase the level of impunity. Today, it is not uncommon for you to be driving in the streets of Nairobi and find that people no longer respect simple traffic rules. When it says stop for a pedestrian, nobody bothers to stop. When the light is red, people drive past because we have proven over and over again that we can break the rules and nothing happens to us. We have proven over and over again that we can break the rules, but there is no consequence. Well, there may be consequence.
There are consequences if we bring back the rule of law: I beg to support
It may not be now or tomorrow, but there will be consequence if we bring back the rule of law and sanity in the way we conduct the affairs of this country. We saw last year, the beginning of those sorts of consequences. So, I think we, as leaders, have to ask the simple question: Do we want to heal? Do we want to solve the problem or do we wish to wait until it gets out of hand for us to grapple with it? The way to solve the problem is to ensure that we have a credible process that deals with the crimes that were committed.
With those many words, I beg to support.
Yakub MP on the floor
Mr. Yakub: Thank you, Mr. Temporary Deputy Speaker, Sir, for giving me this opportunity to contribute to this very Bill which I support.
Kenyans murdering each other with different types of weapons.
You heard some of my fellow legislators before who have mentioned the issue of video clips which were played at the KICC yesterday by the Committee of Experts on Constitutional Review. That was only for less than ten minutes, but took the hearts of everyone who was there seeing fellow Kenyans murdering each other, hitting each other with different types of weapons. I wish the same thing would have been shown to other Members in one of the Kamukunjis, so that we realize what really had happened at that time.
We should not forget that over 300,000 Kenyans were internally displaced.
The issue of impunity did not start during the 2007 General Election. It was started when white settlers and explorers came to Kenya starting from the Coast Province to the hinterland. They did not respect the people who they met. There was no rule of law. Our land was taken and, at that time, the Government governed with impunity. Some of us have been trying to ask ourselves: Why now? What happened when the same Bill was brought here and almost many of us opposed it? There are really fundamental reasons. One of the issues was compensation to those affected and the other issue was whether we should go for the Hague option or local tribunal. With this Bill, both are allowed. In fact, that particular Bill did not reach the required standards. That was why many of us decided to oppose it. I would like to remind many of us who are here that 1,200 innocent Kenyans lost their lives without any fault of their own. We should not forget that over 300,000 Kenyans were internally displaced. Last night, we saw on our television screens some Kenyans living and sleeping by the roadsides just because of the 2007 post-election violence.
Mr. Nyamu: On a point of order, Mr. Temporary Deputy Speaker, Sir. Are you aware that we have no quorum in the House to continue discussing this very important Bill?
The Temporary Deputy Speaker (Prof. Kaloki): Indeed, Clerks-at-the Table, could you ascertain that we do not have quorum in the House? Ring the Division Bell?
(The Division bell was rung)
The Temporary Deputy Speaker (Prof. Kaloki): Hon. Members, due to lack of quorum, I will now interrupt the business of the House. The House, is therefore, adjourned until today afternoon, Wednesday, November 18th, 2009, at 2.30 p.m.
The House rose at 11.43 a.m.