Extracts of Powerful Contributions By Members Of Parliament on Wednesday 11th November 2009, when Mr. Gitobu Imanyara MP rose to move that the Special Tribunal Bill be read a Second time. The Bill was seconded by Mr. Danson Mungatana MP.
On the morning of Wednesday, 11th November, 2009 Hon. Gitobu Imanyara MP rose to move that the Constitution Of Kenya ( Amendment ) Bill be read a second time. Sadly, the debate on this crucial bill that seeks to set up a Special Tribunal to punish the perpetrators of Post Election Violence was adjourned due to lack of Quorum. Ministers and Assistant ministers had jetted off to Mombasa for a retreat that was yet to begin as the two Principals Mwai Kibaki and Raila Odinga were photographed at Nairobi’s Jomo Kenyatta Airport on Friday receiving the FIFA World Cup. It is clear to the Citizens of this Republic that our representatives FAILED intentionally, to show up at Parliament to debate a matter of National Importance. Can the people of this great country honestly claim to have representation?
We, Citizens of Kenya have presented a Public Petition to Parliament, through Hon. David Ngugi MP in support of Hon. Imanyara’s Bill for a Special Tribunal that seeks justice for our Brothers and Sisters and their children who are victims of the Post Election Violence. We want our so called representatives to be clear that they are in Parliament because they are elected by Kenyan Citizens. It is Kenyan Citizens who are saying that they want a Special Tribunal that meets International thresholds under the ICC. The vox populi cannot be ignored in a Democracy. The Kenyan People have spoken, and now we want our voice to be loud and clear in the National Assembly.
Members of Parliament must enact into Law, the Constitution Of Kenya ( Amendment ) Bill 2009. Kenyans are watching. We also urge the International Community to stand with the Public on calling for Parliament to immediately enact this crucial Bill into Law. Mwai Kibaki and Raila Odinga must rally their troops to support the enactment of the Bill into Law as promised to Kenyans when they received the Waki report in October of 2008 “ With Power comes responsibility” Kenyans expect the Principals to honour their promises.
Below is an extract of the Proceedings in Parliament on the Special Tribunal Bill on Wednesday 11th November 2009.
Hon Gitobu Imanyara MP, moves that the Bill be read a Second time
Mr. Imanyara: I beg to move that the Constitution of Kenya (Amendment) Bill be read a Second Time. Mr. Deputy Speaker, Sir, I stand before you with great humility and profound gratitude to move the Constitution of Kenya (Amendment) Bill, 2009. If enacted, as I plead with you, we will amend the Constitution of Kenya to create a Special Tribunal for Kenya to investigate, prosecute and determine cases against persons responsible for genocide, gross violation of human rights and crimes against humanity.
The Tribunal will also investigate prior and subsequent events, circumstances and factors relating to offences arising from and connected with the December, 2007 General Election.
On 16th December, 2008, His Excellency the President and Commander-in-Chief of the Armed Forced, Mwai Kibaki together with the Rt. hon. Raila Amolo Odinga signed a historic agreement which was in the following language. It reads:-
“Agreement for the implementation of the recommendations of the Commission of Inquiry into Post Election Violence. Recalling the agreements on the principles of partnership of the Coalition Government made on 28th February, 2008, and the agreement for the establishment of a Commission of Inquiry on Post Election Violence dated 4th March, 2008 convinced that the fundamental reforms must be instituted to create a better, more secure, more prosperous Kenya for all, desirous to establish a framework for the implementation of the recommendations of the Commission into Post Election Violence as contained in the report dated 16th October, 2008, the CIPEV Report and pursuant to the National Accord and Reconciliation Act as entrenched in the Constitution of Kenya, now the parties hereby – the parties were the President and the hon. Prime Minister – agree as follows—
Article One- Parties shall submit a bill
“ Article One on the establishment of a special tribunal for Kenya says that “the parties shall prepare and submit to the National Assembly for enactment a Bill to be known as “The Statute for the Special Tribunal” to give effect to the establishment of a Special Tribunal to seek accountability against persons bearing the greatest responsibility for crimes, particularly crimes against humanity relating to the 2007 General Election in Kenya. The Bill shall provide for the matters recommended by the CIPEV Report in relation to a Special Tribunal for Kenya”.
Article two- Parties shall mobilise Parliamentary support
Article Two says that “the parties shall mobilise Parliamentary support for the enactment of Freedom of Information Bill, 2008 and take such administrative measures as they may be necessary to fully operationalise the Witness Protection Act, 2008 and the International Crimes Act, 2008.
Article three- Parties shall initiate urgent reforms
Article Three which talks about comprehensive reforms in the Kenya Police and the Administrative Police says that the parties shall initiate urgent and comprehensive reforms of the Kenya Police and the Administrative Police. Such reforms shall be undertaken by the panel of policing experts and will include, but not limited, to a review of all tactics, weapons and use of force, establishment of an independent Police Service Commission to oversee both the Kenya Police and the Administrative Police, an Independent Police Conduct Authority for both the Kenya Police and the Administration Police, creation of a modern Code of Conduct for the Kenya Police and the Administrative Police and achieving ethnic and tribal balance in the force”.
Article four- Parties shall suspend and bar from office public servants
Article Four on public officers and offices says that “the parties shall ensure that any person holding public office or any public servants charged with a criminal offence related to the 2008 post election violence shall be suspended from duty until the matter is fully adjudicated upon. The parties shall ensure that any person convicted of a post election violence offence is barred from holding any public office or contesting any electoral position”.
Article Five- Parties shall develop & implement conflicts & disaster early warning response systems
Article Five on Conflict and Disaster Early Warning and Response System says that “the parties shall ensure that the conflicts and disaster early warning and response systems as articulated in the First Medium Term Plan, 2008/2012 and are developed and implemented as a matter of priority.
Article Six- Parties hereby designate a Cabinet sub Committee of National Accord
Article Six on Framework for implementation states that “the parties hereby designate a Cabinet sub-Committee of National Accord comprising of His Excellency the President and Commander-in-Chief of the Armed Forces of the Republic of Kenya, Mwai Kibaki; the Rt. hon. Raila Odinga who is the Prime Minister of the Republic of Kenya and the eight Ministers who represent the parties at the Kenya National Dialogue and Reconciliation as the bodies to oversee the day to day management and implementation of the agreements.”
Mr. Deputy Speaker, Sir, this Bill is our contribution as Members of the Tenth
Parliament to the realisation of the objectives that were set out by His Excellency the President, the Rt. hon. Prime Minister and the eight man and women team that was charged with that responsibility. I need not to remind hon. Members that this Accord was entrenched in our national Constitution, therefore, creating a very solemn obligation on the part of the parties and on us, as Members of Parliament. The eight Ministers who represent the parties in the agreement are:-
(i) Hon. Moses Wetangula;
(ii) Hon. Mutula Kilonzo, MP;
(iii) Hon. Prof. Sam Ongeri, MP;
(iv) Hon. Martha Karua, MP, now replaced by Hon. Beth Mugo, MP;
(v) Hon. Musalia Mudavadi, MP;
(vi) Hon. James Orengo, MP;
(vii) Hon. William Ruto, MP; and,
(viii) Hon. Sally Kosgei, MP.
Kenya Ratified the Rome Statute
The journey to this stage began with the unanimous decision of the then NARC Government through the then Minister for Justice and Constitutional Affairs to ratify the Rome Statue that set up the International Criminal Court in Rome. This country proudly, ratified the Rome Statute on 15th March, 2005 and, therefore, joined the international efforts to end the culture of impunity. This country recognises the exhaustive provisions in that statute to deal with impunity. In too many cases across the world, these crimes had been committed with impunity which had only encouraged others to flout the laws of humanity.
The International Criminal Court was created due to that urgent need to end impunity and stop gross violation of the International Humanitarian Law.
On 17th July, 1998, the international community reached a historic milestone when 120 states adopted the Rome Statute forming the legal basis for establishing the permanent International Criminal Court. The states were mindful that millions of children, women and men have been victims of unimaginable atrocities that have deeply shocked the conscience of humanity. The states were affirming that the most serious crimes of concern to international community must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international co-operation.
Article 27 which stipulates that the statute shall apply equally
Mr. Deputy Speaker, Sir, among the provisions of the Rome Statute that we ratified is Article 27 which stipulates that the statute shall apply equally to all persons without any distinctions based on official capacity. Article 29 provides that the crimes within the jurisdiction of the court shall not be subject to any statute of limitations. The ratification was followed by the next major step of domesticating the Rome Statute when this House approved the Government’s efforts of domesticating it by passing the International Crimes Bill into an Act of Parliament.
Mr. Deputy Speaker, Sir, our efforts towards the establishment of a truly democratic environment under which the rule of law and respect for human rights were dealt a near fatal blow by the events surrounding the declaration of the result of the Presidential Elections of December, 2007 General Elections. I need not repeat the tragic circumstances that saw more than 1,000 Kenyans slaughtered in an unprecedented orgy of ethnic mayhem and also left more than 500,000 of fellow Kenyans living as refugees or Internally Displaced Persons (IDPs) within our borders.
The tensions, suspicions, prejudices and fears provoked by those events, unfortunately, remain with us today. Against the above background, the international community did not disappoint. At the moment, we must pay tribute to the Secretary-General of the United Nations, Mr. Ban Ki Moon, the then President of Ghana, His Excellency John Kufuor, His Excellency the former President of Tanzania, Mr. Benjamin Mkapa, the former Secretary-General of the United Nations, Dr. Kofi Annan and Her Excellency, Madam Graca Machel. It is through the efforts of the UN and the international community that the National Accord and Reconciliation Committee was formed after the disputed elections held in December, 2007. The Committee held its deliberations under the auspices of the panel of eminent African personalities and through them, the National Accord was born and signed into law on 28th February, 2008, and also enacted in the Constitution to ensure that its noble intentions were not manipulated or subverted.
National Accord signed by Mwai Kibaki & Raila Odinga established a Commission of Inquiry into the Post- Election Violence
Mr. Deputy Speaker, Sir, under the National Accord signed by President Mwai Kibaki and Prime Minister Raila Odinga, the Commission of Inquiry into the Post-Election Violence (CIPEV) was established vide gazette notice No.4473 on 22nd May, 2008. Its mandate was to investigate the facts and circumstances surrounding the violence; the conduct of state security agencies in their handling of it and to make recommendations concerning this and other matters. Under the chairmanship of Justice Phillip Waki, Judge of the Kenya Court of Appeal, the CIPEV carried out its mandate and completed its task within a reasonable time and in accordance with its provisions, made fundamental recommendations among them:-
Special Tribunal for Kenya be set up as a court that will sit within the territorial boundaries of the Republic of Kenya
“(a) A special tribunal to be known as Special Tribunal for Kenya be set up as a court that will sit within the territorial boundaries of the Republic of Kenya and seek accountability against persons bearing the greatest responsibility for crimes, particularly crimes against humanity relating to the 2007 General Elections in Kenya. The special tribunal shall achieve this through the investigation, prosecution and adjudication of such crimes.
Tribunal shall apply Kenyan and International Law
(b) The special tribunal shall apply Kenyan law and also the International Crimes Bill once this is enacted, and shall have Kenyan and international judges as well as Kenyan and international staff to be appointed as provided there under.
Special Tribunal shall be enacted into law and come into force within a further 45 days after the signing of the agreement
(c) In order to fully give effect to establishment of the special tribunal, an agreement for its establishment shall be signed by the representatives of the parties in the agreement of National Accord and Reconciliation within 60 days of the presentation of the report of the CIPEV to the panel of eminent African personalities or the panel representatives. A statute to be known as a Statute for Special Tribunal shall be enacted into law and come into force within a further 45 days after the signing of the agreement.
ICC can investigate and prosecute suspected persons if Tribunal fails
(d) If either an agreement for the establishment of a special tribunal is not signed or the statute for the special tribunal fails to be enacted or the special tribunal fails to commence functioning as contemplated above or having commenced operating its purposes are subverted, a list containing names and relevant information on those suspected to bear the greatest responsibility for crimes falling within the jurisdiction of the proposed special tribunal shall be forwarded to the special prosecutor of the International Criminal Court (ICC). The special prosecutor shall be requested to analyze the seriousness of information received with a view to proceeding with an investigation and prosecuting such suspected persons.
Anchored in the Constitution
(e) The Bill establishing a special tribunal shall ensure that the special tribunal is insulated against objections on constitutionality and to that end it shall be anchored in the Constitution.”
Attempt to create A special Tribunal failed the First time it was introduced
Mr. Deputy Speaker, Sir, the above recommendations, among others contained in the Waki Report, led to the introduction before this House of the first attempt to create a special tribunal for Kenya. The attempt failed when this House rejected it for reasons among others, are:-
(i) It did not meet constitutional safeguards on the criteria and conditions set by the Waki Report.
(ii) As drafted, it could not win the confidence of victims because of lack of credible,
(iii) impartial, independent investigations and prosecution procedures
(iv) It did not guarantee standards of trials set out in the Rome Statute.
(v) It did not have financial and political independence.
(vi) Provisions on witness and victim protections were inadequate.
Mr. Deputy Speaker, Sir, despite advice in a Speaker’s Kamukunji that we held in the Old Chambers attended by both the President and the Prime Minister, the efforts of the then Minister for Justice, National Cohesion and Constitutional Affairs, failed to yield.
resignation of the Minister from the Government
Subsequent events led to the resignation of the Minister from the Government and she was succeeded by Mr. M. Kilonzo, whose efforts also failed when his colleagues in the Cabinet rejected a much improved version of the original Bill.
It was at that stage that the civil society, led by the Law Society of Kenya (LSK) and supported by others including the International Commission of Jurists (ICJ), International Centre for Policy and Conflict (ICPC), FIDA Kenya and a number of us in the backbench met, fine-tuned and improved on the earlier Bill rejected by the Cabinet and in a departure from the traditions of this august House, published it in a draft form in a website called “endimpunityinkenya.org” seeking views from Kenyans within and without. Within days, the website recorded more than 50,000 hits and close to 5,000 comments and suggestions for improvement. The result is the Bill that I am introducing to this House today.
Kenyans determined to end the culture of impunity
Mr. Deputy Speaker, Sir, may I at this point remind hon. Members that what is before this House is, therefore, the product of all the above. It is not a sole effort of myself, Mr. Imanyara, but a combined effort of Kenyans determined to end the culture of impunity in our beloved Republic.
Why the Bill? In line with Recommendation No.6 of the Waki Report, the Bill proposes the following constitutional amendment. The Constitution of Kenya shall be amended by inserting the following new Section immediately after Section 3A which reads:- “There is to be established a tribunal to be known as a Special Tribunal for Kenya which shall have exclusive jurisdiction in accordance with this Constitution;
(a) to investigate, prosecute and determine cases against persons responsible for genocide, gross violation of human rights, crimes against humanity; and,
(b) investigate prior and subsequent events, circumstances and factors relating to the crimes and to prosecute related offenses arising from and connected with crimes committed in Kenya in connection with December, 2007 elections.
Mr. Deputy Speaker, Sir, Clause 3A (vi) says that:- this Section shall cease to be effective upon expiry of three years from the dates of the establishment of the tribunal, provided that Parliament may extend the life of the tribunal which may be extended in appropriate circumstances and at the request of the tribunal by the resolution of the National Assembly, supported by not less than 65 per cent of all Members of the National Assembly excluding the ex-officio Members.
Mr. Deputy Speaker, Sir, in line with Recommendation No.5 of the Waki Report,the Bill proposes in Clause 3A (ii) as follows:- “Notwithstanding the provisions of this Section, the ICC established under the Rome Statute shall have concurrent jurisdiction to investigate, indict and prosecute persons bearing the greatest responsibility. The Tribunal, may, at any stage make a referral to the ICC as set out in Article 14 of the Rome Statute with reasons thereof if it deems expedience provided that no person shall be subjected to prosecution by both the ICC and the Special Tribunal at the same time.”
Mr. Deputy Speaker, Sir, in line with recommendation number 2 of the Waki Report and in recognition that this country has fully operationalised the International Crimes Act, 2008 and in recognition of the Vienna Convention Section 11(3)(i) and (ii) of the Bill are coached in the following words:- “(3)(i) This section shall apply equally to all persons without any distinction based on official capacity and shall in no case exempt a person from criminal responsibility nor shall it in and of itself constitute a ground for reduction of sentence;
(ii) Immunities or special procedural rules which may attach to the 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 Vienna Convention.”
Mr. Deputy Speaker, Sir, in line with Article 28 of the Rome Statute which ratifies this, the Bill proposes as follows in Section 11(4):- “The fact that any other acts under the interpretation section herein above was committed by a subordinate does not relieve his superior of criminal responsibility if the superior knew or had reason to know, or to have ought to have known, or owing to the circumstance at the time, should have known, or consciously disregarded information which clearly indicated that the subordinate was about to commit such acts or has done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to submit the matter to the Competent Authorities for investigation and prosecution.”
Section 11(5) says: “The fact that an accused person acted pursuant to an order of a Government official or of a superior shall not relieve him or her of criminal responsibility.”
Mr. Deputy Speaker, Sir, contrary to assertions from some quarters, the Bill does not target any one personality, institution or community. It targets the perpetrators of impunity wherever they are from whatever community or racial group in Kenya.
Mr. Deputy Speaker, Sir, Section 11(1) of the Bill is coached as follows:- “A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime shall be responsible individually for the crime”.
Mr. Deputy Speaker, Sir, in line with recommendation number one of the Waki Report, the Bill has given the Tribunal wide powers to look at events that not only took place after the disputed Presidential results were announced, but also that preceded the general election.
Section 4(1) of the Bill gives the Tribunal the following functions:- “The functions of the Tribunal shall be to investigate, prosecute and determine cases against persons bearing responsibility for genocide, gross violations of human rights, crimes against humanity and other crimes which occurred in relation to the General Elections held on 27th December, 2007.”
Section 4(2) says:-“The Tribunal shall have power to investigate prior and subsequent events, circumstances and factors relating to the crimes and to prosecute related offences arising from and connected with the crimes.”
Therefore, those who fear that and I quote their words “stole elections will be scot-free” will not go scot free because the Tribunal does have powers to make investigations on all aspects. The Tribunal shall determine who to pay compensation for the identified victims after assessment has been undertaken by special magistrates.
Lastly, the effects of investigation, indictments and convictions on holders of public office are stipulated in Clause 55(1) of the Bill. It reads as follows:- “A public officer under investigation shall stand relieved of duties until exonerated.”
Section 55(2) says:- “A public officer who is indicted or convicted of a crime under this statute shall cease to hold public office.”
The Bill before this House today does not aim to replace the criminal processes or work of the Kenyan judiciary. It is not imposed upon us from outside, but as I have explained, it does recognise the efforts of international community as entrenched in the Constitution through the Panel of Eminent African Personalities.
The Bill has four parts.
Part one contains preliminaries,
part 2 providing for the operations and structure of the Special Tribunal for Kenya as a body corporate; it sets out the procedure for the appointment of judges of the Tribunal, Prosecutor, Registrar, Defence Counsel, Special Magistrates and it also specifies the crimes to be prosecuted.
Part three contains financial provisions in respect of the Tribunal and provides for the sources from which funds of the Tribunal will be drawn.
Part 4, contains miscellaneous provisions, including requirements that the Tribunal do prepare and submit a report on its work to the National Assembly.
The Bill gives the two principals signatories to ensure the proper functioning of the Special Tribunal
The Bill gives the two principals signatories, His Excellency the President and Right Hon. Prime Minister extra-ordinary authority to ensure the proper functioning of the Special Tribunal. That is why the Constitution itself, through the Bill that we entrenched, gave special responsibility to the eight Cabinet Ministers who have been charged with that solemn responsibility of ensuring, not only that the special Tribunal is formed, but it functions smoothly and in accordance with the recommendations contained in the Waki Report.
All we are doing this morning is supporting those efforts. It is a pity that 90 per cent of those who are charged with that responsibility are not here to understand and hear that we are doing what is expected of them. We are only supporting their efforts. This solemn obligation they took when they signed the agreement setting out the principles. If you look at those principles as I have read, you will see that we are lagging far behind the reform agenda. That is why we, as a Parliament, are called upon to take responsibility of leadership to ensure that this country never again has to undergo through what we went in December, 1997 and early January, 1998.
Tribunal uses the best of international practice and international legal know-how
Mr. Deputy Speaker, Sir, in conclusion, I want to emphasize that the Special Tribunal Bill that we seek to establish is a truly Kenyan Tribunal. It uses the best of international practice and international legal know-how as recommended by the Panel of Eminent African Personalities. It is created by the will of the Kenya people and a creature of this House and none other. The Special Tribunal is not answerable to the United Nations (UN), Koffi Annan or any foreign envoy. The Bill clearly differentiates between culprits and minor collaborators. The chief perpetrators go to The Hague. Their names are contained in an envelope. The other violators will be dealt with here in accordance with the law without distinction as to their community, status in life and official capacity.
It does not victimise any group of any class. It serves the victims while dealing with new ones and differentiations with the culprits. The Special Tribunal we are creating does not depend on the International Criminal Court (ICC), but will collaborate with it.
passing this Bill will strengthen our sovereignty
Mr. Deputy Speaker, Sir, passing this Bill will strengthen our sovereignty and show critics and detractors that we are not a failed state, but a state that is able, ready and willing to regulate her own affairs. I urge the hon. Members to enact this Bill into law. In the words of Winston Churchill, we are still toiling up the hill. We have not yet reached the crest line of it. We cannot survey the landscape or even imagine what condition will be when that longed for morning comes. The task which lies before us immediately is one that is practical, simpler and has higher standards more stands. I hope and, indeed, pray that we shall not be found unworthy of our victory if after toil and tribulations of it, it is granted to us. For the rest, we have to gain the victory. That is our task.
Mr. Deputy Speaker, Sir, I beg to move the Constitution of Kenya (Amendment) Bill and request hon. Mr. Mungatana to second it.
Mr Danson Mungatana MP rises to Second the Bill
Mr. Mungatana: Mr. Deputy Speaker, Sir, I want to congratulate hon. Gitobu
Imanyara for moving this Bill. I also want to thank him so much for taking time to move The Constitution of Kenya (Amendment) Bill, which essentially seeks to introduce the Special Tribunal in Kenya.
Mr. Deputy Speaker, Sir, hon. Imanyara has gone into details about what the technical bits of the law that are necessary for us to get the Special Tribunal for Kenya and he has gone into the details of the kind of things and the standards that we need to set. However, I want to bring this debate to another level. Crimes were committed in this country after the general election of 2007. There were crimes of murder, rape, robbery with violence, those that involved injuries to people, burning of homes and things like that. However, there are what we call ordinary crimes and crimes that threaten the very existence of a state. The kind of crimes that were being committed at that time were threatening the existence of the state that we know as Kenya
Mr. Deputy Speaker, Sir, when we have a crime that is committed and threatens the existence of a State and also brings the fear of disintegration of a whole nation, such a crime cannot be treated as an ordinary crime. There have been arguments that the Attorney-General of the Republic of Kenya could have arrested all those people and tried them under the current existing laws. He could have taken all the people who were involved in whatever forms of little crimes that were committed at the time, have them arrested and then charge them in court under the existing laws. People have argued before saying that because the Attorney-General did not do that, it is a failure on his part. I stand here as the devil’s advocate. The kind of crimes that were being committed at that time were threatening the existence of the state that we know as Kenya. They were not ordinary crimes that were committed in this country. Those were crimes that were threatening the very fabric of the state that we know as Kenya. Therefore, it is not the failure as such of the Attorney-General. It was the failure of the law that existed at that time that would not be able to address the issues that were in existence.
Mr. Deputy Speaker, Sir, that is why, right now, we need to pass this statute of the Special Tribunal that will deal with those kind of crimes that were threatening the existence of the nation. These were not ordinary crimes. This is the reason why this Parliament should be persuaded to pass the law that hon. Imanyara has just moved.
Mr. Deputy Speaker, Sir, the existence of this kind of situation is not new. It has been existing in other parts of the world and there are many examples that people can look at. However, what comes to my mind, and every hon. Member can quickly access it if they go to the Cable News Network (CNN) blog, is that they will see what happened in Cambodia;. 1.7 million people were killed in Cambodia in three months because of the uprising of the Khmer Rouge. Many of us would remember hearing about the Khmer Rouge again and again. It was not possible in Cambodia to deal with those murders, rapes, killings and burning of properties that took place using the normal laws that existed at that time. It was necessary to set up a special law that would deal with that situation.
set up this Special Tribunal so that we can deal with a situation that existed and could not be handled with the current laws that exist in this country.
Mr. Deputy Speaker, Sir, so in seconding this Bill, I am urging Members of Parliament to bring to bear the fact that there is need for us right now to set up this Special Tribunal so that we can deal with a situation that existed and could not be handled with the current laws that exist in this country. Legally and politically speaking, the laws that were in existence at this time and the laws that are in existence at that time are not capable of dealing with the situation that we have. Therefore, this is one fundamental reason why I am urging hon. Members in this House and those who are listening to us even outside this House, that there is need for us to come together as a nation and support the aspirations of many Kenyans and set up this Special Tribunal.
Kenyans were injured. People lost their lives. Children were butchered. Women were raped. Young men were killed at the prime of their youth
Mr. Deputy Speaker, Sir, this brings me to the second point why we need to set up this Special Tribunal. A lot of Kenyans out there were injured and suffered crimes. People lost their lives. Children were butchered. Women were raped. Young men were killed at the prime of their youth. A lot of people show the clips that were there during the post-election violence. Those are images we cannot forget. These Kenyans who were victims are listening to us today and looking up to the leadership of the country to do something about the problems of victimization they encountered at that period. It is a time in history for this Parliament to rise to the occasion and listen to the cries of the people in the countryside and those in towns who suffered the brunt of the election violence.
Kenyans who brought us to this Parliament need to see leadership in us
Mr. Deputy Speaker, Sir, even reading what was recommended by the Justice Waki and Kriegler Commissions, our people suffered and need a closure to that sad chapter of history. I know that we need to forgive and this is what the good book tells us and we will forgive. That opportunity will come under the Truth Justice and Reconciliation Commission (TJRC) but under this law, we want people to be held responsible so that Kenyans who brought us to this Parliament would be able to see leadership in us. Leadership is not about being popular; leadership is about walking and charting places which may not necessarily have been charted before. Sometimes it is dangerous, unpopular and difficult. That is why I am saying we need to congratulate hon. Imanyara for this bold step he has taken.
meet the aspirations of the people of Kenya
Mr. Deputy Speaker, Sir, Kenyans today would like to see a situation where those people that wronged them can face justice in this country. They know them. Some of them were their neighbours and are still walking around in their neighbourhoods. Some of them are laughing at them. It is important for us as a nation to meet the aspirations of the people of Kenya who want to see a closure to this sad chapter in our history, which is the second reason why we need to pass this Bill and offer leadership to the people of Kenya.
victims of post-election violence who would wish to give their evidence have a special arrangement under this law
Mr. Deputy Speaker, Sir, the third reason I am seconding this Bill, and I think we
should all support it, is that the victims of post-election violence who would wish to give their evidence have a special arrangement under this law. People will not be living in fear again in the countryside. They will be able to come out to give their bit. When the Truth, Justice and Reconciliation Commission commences work, it will find people who have already started the process of healing.
Victims will be compensated
This Bill also provides clearly that the victims of post-election violence will be
compensated. In the whole debate about the post-election violence, the country has been concerned about those who need to be protected. They have forgotten about the victims of the violence. When we have national disasters in the country, say, as a result of bad weather, the nation always wakes up to the occasion. For example, Ministries come together to help people resettle. However, the Internally Displaced Persons (IDPs) have been forgotten. Those who had farms were given only Kshs35,000. There are those who were employed but are not jobless and they cannot go back where they used to work.
They have lost their livelihood! These people need to be compensated. So, in this Bill, the victims of post-election violence have been clearly provided for. The Bill seeks to set up a fund. This will enable the victims of the violence say: “Indeed, our country did not forget us”
if these victims should be forgotten, then that is another failure.
If we say that the problem that arose was collective because of the failure of the
electoral system at that time, then it was a failure of the State. We failed collectively. However, if we also say that these victims should be forgotten, then that is another failure. In this Bill, it is proposed that a fund be set up. The State will try to reach out to the victims of post-election violence and compensate them. That way, the nation will start a true healing process.
this particular Bill, people are being treated equally.
Mr. Deputy Speaker, Sir, hon. Imanyara touched on the reasons that made us reject the initial Bill. The most crucial thing is to realize that in this particular Bill, people are being treated equally. According to this Bill, in all circumstances, there is no regard to the position you hold. You could be the President, Vice-President, Prime Minister, Deputy Prime Minister, or Police Commissioner, but this Bill is not restrictive. It seeks to deal with and bring equality to everybody. It is for that reason, again, that I urge my colleagues to support it.
Kenya has suffered impunity right from Independence
Kenya has suffered impunity right from Independence. Impunity has been there since the regime of the late first President, the second President and even now. The notion in this State is that when you are a big person, you cannot commit any wrong and that you need to be protected at all costs. This Bill seeks to correct that. For the first time in this country, we will see people being taken to trial. Impunity needs to be dealt with in this country and we must begin from somewhere. I was very happy when the other day I read in the newspapers that the former President of France, Mr. Jacque Chirac was being questioned and warrants had been issued that he appears in court to answer to charges of improper use of resources when he was the mayor of Paris. You can imagine the levels where justice has reached in that country – a former Head of State can be called to account!
In the same country, the current President, Mr. Sarkozy, has gone to court to fight for his rights. Apparently, when he was running for the presidency, the former Prime Minister, Dominique de Villepin was involved in some schemes to ensure that Mr. Sarkozy does not succeed. In Kenya, we call it “kupakana matope”. That is the level we need to take our country. I know of democracies that have been in existence for many years. For example, we all know about the French Revolution of 1779.
Mr. Deputy Speaker, Sir, here, we are talking about impunity and we do not need to reinvent the wheel. In Kenya, you hardly ever hear of a Government Minister being taken to court to answer to this-and-that charge. That is why, today, even on small matters like traffic jams, you will see a flagged car `flying’ on the wrong side of the road. They do not care that they could cause an accident and kill someone. They just ‘fly’. They do not know that we are the ones paying for the flagged vehicle, whether it is a Passat or the big guzzlers. The sense of impunity exists in this country and it is what we need to deal with. It is impunity which tells you: “Because my father is So-and-So, you cannot touch me. Because my grandfather is So-and-So, I need to get this tender. I can shoot you and nothing will happen to me. I can plan violence and nothing will happen to me so long as I fight so hard to catch that flag. Once it is on my car, nothing will happen to me”. We need to take our country to the level of France. Everybody must be ready to pay the price so that the State can move forward. This is a big reason we need to support this Bill. It is seeking to deal with that impunity. In this Bill, nobody is big or immune. If you have been mentioned, whether you are a Government officer or not, you are required to come out of that office so that you can be dealt with in a normal way. We have to respect the flag and that is why we have to remove you from office so that you can be dealt with.
Mr. Deputy Speaker, Sir, for those reasons, I second this Bill and urge hon. Members to show leadership and go for it. Let us close this chapter of our nation. I beg to second.
The Assistant Minister for Roads (Dr. Machage): Bw. Naibu wa Spika, huu
ndio wakati wananchi wa nchi hii wanapaswa kuwatambua viongozi wazalendo ambao wana uchungu na utu; viongozi ambao wanamtambua kila mtu kwenye sehemu ya uwakilishi Bungeni kama binadamu, na kujua kwamba binadamu wote ni sawa.
Kwa wale, wale ambao wanapenda kusoma Biblia, wanajua kwamba wakati fulani, Mwenyezi Mungu alimuumba binadamu na binadamu akawazaa watoto wawili; Abel na Kain. Baadaye, Kain aliamua kumuua Abel. Mwenyezi Mungu akamuuliza Kain: “Ndugu yako yuko wapi?” Kain akamujibu: “Sijui.” Mwenyezi Mungu akamuuliza: “Unasema hujui na damu ya ndugu yako inalia mbele ya macho yangu?”
Bw. Naibu wa Spika, damu ya wananchi zaidi ya 1,000 waliofariki wakati wa
ghasia za baada ya uchaguzi mkuu wa 2007 inalia mbele ya macho ya Mwenyezi Mungu. Mwenyezi Mungu amemweka hapa mwawakilishe watu wake ili mweze kusikia vilio kama hivyo lakini wengine wetu tunakipuuza kilio hicho. Mimi niliupinga Mswada wa kwanza ulioletwa Bungeni. Mhe. Imanyara, na viongozi wengine wengi, pia waliupinga Mswada huo kwa sababu ulikuwa umetayarishwa na hila. Mswada huo ulikuwa umeandikwa kuwatetea wauaji na wavunjaji sheria. Mimi na Waziri Msaidizi mwingine mmoja tu ndio tulioukataa Mswada huo miongoni mwa wale tuliomo Serikalini.
Tulilazimishwa na Serikali kuunga mkono Mswada huo lakini tulikataa. Tulisema kwamba haiwezekani kwa sababu Mswada huo haukufaa. Nikauliza: “Kwa nini Mswada huu hauna vipengele ambavyo vinamruhusu kila mtu kulingana na mwingine kisheria?”
Lakini hakuna aliyetaka kulijibu swali hilo, isipokuwa tu kutulazimisha kuja hapa kuunga mkono Mswada huo, ambao haukuwa unafaa. Kwa hivyo, nikasema “la”. Ukaja mswada wa pili ambao ulikuwa na tatizo kama hilo, nikasema “la”.
Bw. Naibu wa Spika, leo hii, kuna Mswada ambao umependekezwa kwetu na mhe. Imanyara, na ninampongeza mhe. Imanyara kwa kazi nzuri aliyofanya ya kuuandika Mswada huu vile inavyotakikana. Hakuyatoa mambo haya kutoka kwa kichwa chake, bali ameifuata sheria. Amefuata mapendekezo yaliyowekwa na kuratibishwa na viongozi wetu wakati walipoweka sahihi yale makubiliano baada ya vita.
Kipengele cha Nne cha ile memoranda waliyoweka sahihi kinasema kwamba mtu yeyote atakayepelekwa kortini kwa mashtaka ya kuvunja sheria ni lazima aondoke Serikalini. Mtu huyo ni lazima aondolewe madaraka pamoja na mshahara wake na marupurupu yote anayopata kutoka kwa Serikali. Wakuu wawili wanaoshikilia Serikalii, pamoja na wale Mawaziri wengine wanane waliokuwepo, waliweka kidole wenyewe.Walisema kwamba sheria ni lazima ifuatwe na korti kuandaliwa ili haki itendeke kwa walioadhirika.
Bw. Naibu wa Spika, ninashangaa kuona kwamba labda wameusahau huo mkataba waliouweka mbele ya macho ya wananchi wa Kenya. Bw. Ocampo aliwasili humu nchini kuyashughulikia mambo hayo lakini wale wazee wawili wanaoshikilia Serikali, ambao ninawaheshimu sana, walirudisha nyuso zao nyuma na kukataa kumuruhusu Bw. Ocambo kuwafungulia mashtaka wahalifu hao. Wawili hao waliogopa kusema hivyo kwa sababu miongoni mwa wale waliotenda madhambi hayo ni marafiki zao.
Mr. Mbadi: On a point of order, Mr. Deputy Speaker, Sir. With a heavy heart,
this Bill is very important, given that it has far-reaching effects on this country but
looking around, I do not think the Quorum in this House is adequate enough to give this Bill enough attention.
Mr. Deputy Speaker: Indeed, we do not have a Quorum. So, could the Division Bell be rang?
(The Division Bell was rung)
Mr. Deputy Speaker: Hon. Members, there being no quorum, this House is, therefore, adjourned until this afternoon, Wednesday, 11th November 2009, at 2.30 p.m.
The House rose at 10.55 a.m.
Shame, Shame ,Shame! Where were the Members of Parliament? Where was the Voice of the people? In mombasa at a retreat? On our tax money? What about the Victims? When will they get Justice? Shame!