Imanyara: House will nail big fish with proposed Bill

• Imanyara: In this new Bill, we seek to amend the Constitution to remove the immunity of the President

Gitobu Imanyara has caused waves with a proposed Bill that would see the perpetrators of post-election violence face the law. He spoke to Sunday Nation’s ALPHONCE SHIUNDU about his plan

SUNDAY NATION:You led MPs in pushing for trials to take place at the International Criminal Court at The Hague. Why the change of heart?

Imanyara: We were never opposed to the local tribunal as such. I still stand for The Hague. We opposed the tribunal because the government had watered down the initial Bill. It had too many loopholes.

But the draft Bill that you are pushing now is similar to the one brought by the then Justice minister Martha Karua. Are you being sincere?

Yes, the draft Bill on our web site is just a working draft. We have tightened the initial Bill and introduced crucial amendments to make the proposed tribunal meet international standards. We’ll be publishing the revised version next week.

In this new Bill, we seek to amend the Constitution to remove the immunity of the President; quash the powers of the Attorney-General to take over or terminate cases, and ensure the tribunal’s operations are separated from the Judiciary.

We also have to protect the tribunal from High Court interference and force those indicted to leave office as soon as they are charged.

Other key elements we seek to achieve are to shield the tribunal from constitutional challenges of non-retroactivity of criminal legislation alongside exempting it from some provisions relating to the option of mercy. Financial independence is also key to the tribunal’s success.

These issues were raised in Parliament, yet you still threw out the Special Tribunal Bill. Why didn’t you just amend the government’s proposal?

When Parliament adopted the Waki Report we had a timetable for the implementation of the reform agenda. The government was late. So the only option left—Waki’s default clause—was to have the names in the envelope go to the ICC.

Having achieved that, Justice minister Mutula Kilonzo made another fairly credible attempt to establish a special tribunal taking all these into account. The Cabinet killed this dream; that’s why we moved in.

Just how do you suppose you will court ICC to work with the Special Tribunal?

In our revised Bill, we have introduced a clause to leverage on the International Crimes Act, which domesticates the ICC, to have the ICC try the masterminds while the tribunal goes for the small fish.

We can have the chance to use (International Criminal Tribunal for Rwanda facilities) Arusha, The Hague or all other facilities where the ICC has offices.

But that is different from the Sierra Leone model or even the Rwanda tribunal. Is it possible?

Yes, it is possible. Remember, the Sierra Leone government worked with the United Nations to set up their tribunal. The Rwanda tribunal was set up by a resolution of the UN Security Council. We’ll work with the ICC.

What if a person on the Waki list fails to meet the ICC threshold for evidence and is let off?

They will not escape blame by hiding behind double jeopardy – the constitutional right that forbids a defendant from being tried twice for the same crime on the same set of facts. The ICC has very high standards, so those who escape will have to face the tribunal in order to be cleared.