MPs defy Kibaki and Raila on the Hague

Parliament could not get enough MPs to take a vote on Tuesday on the Tribunal Bill as there were only 119 MPs in the House, 29 short of the quorum required for a vote on a proposal to change the Constitution.

MPs defied efforts by President Kibaki and Prime Minister Raila Odinga to rally Cabinet ministers, their assistants and MPs to support the Bill establishing a special tribunal to try post-election violence suspects.

The two leaders presided over a two-hour meeting of ministers and assistant ministers after which they asked Vice- President Kalonzo Musyoka to withdraw the Bill from Parliament.

But deputy Speaker Farah Maalim refused to grant the request, saying the government should have asked the House Business Committee, which determines which Bills and motions are to be discussed, to remove it from the list of parliamentary business.

The failure of the government to muster the numbers, even after a week of lobbying, shows the extent to which differences have poisoned the mood in the House. Some MPs feel that a local tribunal would be open to manipulation and the only way to get justice and defeat impunity is to send the suspects to the International Criminal Court.

There was also speculation that some of the suspects, and who have significant support in the House, prefer a Hague trial because it could take as long as 10 years before they are indicted.

Sections of civil society, which support a local tribunal, have cited the same reason arguing that justice would be too long in coming and that it would be risky to go to another election with some warlords in positions of power.

It also emerged that the Grand Coalition Government is divided by new fears that an attempt might be made to give immunity to public officials who may have had a hand in committing crimes against humanity.

Weaken tribunal

There are new fears of an intention to weaken the tribunal by removing an important clause, article 14, which requires that those who committed crimes in their official capacity be tried for those crimes. This is the section under which senior civil servants would be tried.

The section says: “The fact that an accused person acted in pursuant to an order of a government official or of a superior shall not relieve him or her of criminal responsibility.”

One MP who attended the meeting said he feared that a section of Cabinet ministers wanted to grant immunity to government officials such as the President, the Prime Minister, the Commissioner of Police, among other top leaders.

“They totally want that clause removed from the Bill and that will water down the Special Tribunal because the key perpetrators of the violence will escape,” the source, who did not wish to be named revealing discussions at the closed-door meeting, said.

And Kimilili MP Simiyu Eseli said: “The problem with this whole thing is that there are some people who want us to entrench the tribunal in the Constitution and then delete important clauses in the Bill. That is why we have insisted that they must agree on the content of the Special Tribunal first.”

Mutito MP Kiema Kilonzo has submitted an amendment to the Bill to delete Article 14. Another reason why MPs are staying away from the House at crucial moments is because of a dispute over whether ministers accused of crimes against humanity should remain in office until they are indicted.

A section of MPs want that changed so that suspects resign the minute investigations against them are launched. Dr Eseli has presented an amendment to that effect.

On Tuesday afternoon, Mr Musyoka told the House that the government needed more time for consultation with the parliamentary committee on legal affairs and other groups before the Bill is re-introduced on Thursday.

Mr Maalim declined the request and asked for the bell to be rung, calling MPs back to the chamber. He ruled that another attempt to get quorum be made on Tuesday and if that fails then the Bill be deemed to have failed.

Earlier, the meeting chaired by the President resolved to seek more time to get MP’s support for the Bill.

“We have decided that the Serena group (National Dialogue and Reconciliation Committee) and the parliamentary committee on legal affairs should look into the issues raised by the Law Society of Kenya, civil society and other stakeholders and make necessary changes so that we can debate both the Statute and Constitutional Amendment together on Thursday,” PNU chairman George Saitoti, announced after the meeting.

This is the second time a vote on the tribunal has been postponed. Last Thursday, the vote could not be taken as only 52 MPs were in the House.