MPs on Thursday night made changes to the law that established the Truth, Justice and Reconciliation Commission in a way that could allow them to change the substance of the commission’s report.
So heated was the debate over the matter that Majority Leader Aden Dualle and Peter Kaluma (Homa Bay Town, ODM) had to be separated after their verbal exchange threatened to turn physical.
The two MPs were separated by their colleagues as MPs milled about in the middle of the chamber as the bell rang to summon lawmakers to the vote that decided the matter.
It was not clear what the fight was about but it came on a day marked by heated debates between the Jubilee and the Cord sides over Bills ranging from that on the regulation of the media to another on the police service commission.
Mr Duale heads the Jubilee team in the National Assembly while Mr Kaluma is one of the more outspoken Cord MPs.
The Justice and Legal Affairs had initially agreed to insert a clause in the Bill to amend the TJRC Act to prevent MPs from changing the report.
It read: “In considering the report, Parliament shall not interfere with the context, text, form and substance of the report.”
Up to the time committee chairman Samuel Chepkong’a proposed the amendments, indications were that the clause, a shield against changing the report, would be passed.
But Mr Chepkong’a stunned his colleagues when the time came and he said, “I wish to withdraw (that clause) because it contradicts the Constitution. I withdraw the proposed amendment.”
He said the clause was inconsistent with Article 117 of the Constitution: There shall be freedom of speech and debate in Parliament.
Mr Chepkong’a, the URP-elected MP for Eldoret East, was supported by David Kangogo Bowen (Marakwet East, URP), Majority Leader Aden Duale, Jamleck Kamau (Kigumo, TNA), Kimani Inchung’wa (Kikuyu, TNA) and J.M. Waiganjo (Oljoroorok, TNA).
“This commission were given the mandate to investigate historical injustices but if you go into the report, you will find that even in my own constituency where 67 people were killed, they are not in the report,” he said.
“I support so that we can also include injustices which were done in Marakwet East to be in the report,” he added.
Mr Waiganjo said MPs “can’t pass the report as a conveyor belt while we know in the report, there were people who were given an opportunity to appear before the commission while there are others who were denied.”
“Parliament cannot be expected to just come, get the report, debate the report and then pass the report without interfering with the report itself,” said Mr Waiganjo.
Mr Dualle, who is also the URP-elected MP for Garissa Town, said the TJRC was a creation of the House and MPs were within their rights in seeking to amend the report.
“The people of Wagalla, the compensation they were given, it is for this House to decide whether it was too little and whether this House can increase it,” said Mr Dualle.
MPs Opiyo Wandayi (Ugunja, ODM), Dr James Nyikal (Seme, ODM) and Benson Makali (Kitui Central, Wiper) who had at earlier stages of the Bill’s progress through Parliament had spoken against the Bill were up in arms.
“I’ve got a serious problem with what is happening here,” said Opiyo Wandayi (Ugunja, ODM). “Remember during the Second Reading I raised serious issues with these amendments and it has now come to pass. This (withdrawn clause) was brought in to sugar-coat the mischief that was inherent in the amendment.”
He said that if Parliament is to given the chance to consider the report without the caveat which was under the withdrawn clause, it would mean that the work the commission was doing was in vain.
“This withdrawal was mischievous,” he protested.
“Of all the amendments we have made today, this is the worst for Jubilee. For some of you, because you don’t want to face the reality, unless we look at historical injustices in this country, we shall never have a nation. Unless we think that if one of us is mentioned, that one of us can never be the millions of Kikuyus who are suffering without land in the Rift Valley or the people without land in Mombasa,” said Deputy Minority Leader Jakoyo Midiwo.
Junet Mohammed (Suna East, ODM) argued that given that the Legal Affairs Committee had agreed to have the amendment.
“We cannot allow a report of the TJRC to be mutilated in this House. This is mutilation. The chairman must declare his interest because how can a chairman withdraw an amendment of the committee?” said Mr Mohammed.
Session chair T.J. Kajwang (Ruaraka, ODM) eventually allowed the clause to be adopted by Gladys Wanga (Homa Bay Town).
“Families in this country are mourning. They have not settled. They have lost their loved ones and may be some of us here have not lost their loved ones in the circumstances that these families lost their loved ones and may that is why we can sit here today and say that we want to alter the TJRC report,” she said.
She said the resources spent by the TJRC would go to waste if MPs are allowed to change the report.
“History will judge the members of this House harshly if we leave the widows and orphans and everybody who is waiting for justice by altering, trying to remove people from this report. If they are guilty they are guilty, let them clear their names,” said Ms Wanga.
Ms Wanga’s proposal however lost 36-64 at the physical vote.
Another attempt by Zuleikha Hassan (Nominated, ODM) to stop the MPs from interfering with the report also failed.