Cabinet ministers and government officials accused of crimes against humanity by the Waki commission will stay in office, after all.
They will only be required to step aside after investigations have confirmed that they have a case to answer, according to a deal struck by Members of Parliament on Tuesday.
Under normal circumstances, those suspected of wrongdoing are required to leave office so as not to interfere with investigations. The Waki envelope contains names of six ministers and five MPs, among others.
The MPs agreed to a clause in the draft Bill, which imposes strict secrecy on the names of suspects during the investigative period.
The Bill states in Article 26 (6): “The names of persons under investigations shall not be made public or otherwise disclosed to persons other than those directly involved in the investigations before the indictment has been made.”
The meeting, dubbed the Speaker’s Kamukunji, was called to arrive at a consensus before the Bill establishing the Special Tribunal for Kenya is taken to the House.
The tribunal is one of the recommendations of the Commission of Inquiry into the Post-Election Violence chaired by appellate judge Philip Waki.
The report of the commission had required politicians and holders of public office whose names are contained in the secret list handed over to Chief Mediator Kofi Annan to leave office until their innocence is confirmed.
On Tuesday, MPs agreed to fast-track the Bill establishing the tribunal to beat the Friday deadline.
The Waki commission has a timetable that allows Mr Annan to forward the list of suspects to the International Court of Justice if Kenya fails to act or interferes with the work of the proposed tribunal.
MPs also proposed various amendments to the draft Bill and will hold another meeting on Wednesday to confirm that their proposals have been incorporated. The Bill will be tabled later in the afternoon.
The meeting was closed to the media, but those who attended said MPs came determined to fight the clause requiring suspects to resign. The sources said MPs were disarmed when they discovered that the clause had already been deleted.
President Kibaki and Prime Minister Raila Odinga attended the meeting at the Old Chambers of Parliament.
“You only quit once you have been indicted. During the period of investigations, they will still hold their positions because you cannot force one out of office based on allegations,” said Budalang’i MP Ababu Namwamba after the meeting.
The resignation proposal, an MP who attended the meeting said, had caused panic among politicians who suspect that their names are in the Waki list and they had mobilised their colleagues to ensure the clause was removed from the Bill.
At last week’s Cabinet meeting, seven ministers proposed a list of amendments, including deletion of the clause, on grounds that political careers of some of their colleagues could be unfairly ended.
On Tuesday, the matter was raised in the meeting by, among others, Kimilili MP Eseli Simiyu who wanted to know the fate of ministers whose names would be forwarded to the tribunal for investigations.
However, those indicted will be placed under police custody during the entire period of trial. During the investigative period, only those who fail to go before the tribunal judge after seven days of receiving summons will be arrested.
The clause that bans persons found guilty of crimes against humanity from holding or running for any public office was retained in the Bill.
The President and Mr Odinga attended the meeting in order to seek consensus among MPs to pass the Bill that is key to the setting up of the Special Tribunal on Kenyan soil instead of handing over the suspects to the ICC.
In addition to passing the Bill, MPs will also be required to entrench the Special Tribunal into the Constitution to allow it to operate outside the jurisdiction of local courts and also protect it from litigation.
Those in attendance said Mr Kibaki was quiet during the entire session, but Mr Odinga spoke last and urged MPs to pass the Bill because it would create new grounds for reconciliation and end the culture of impunity among politicians.
During the session, it was said that assistant ministers John Haroun Mwau and Wilfred Machage drew the attention of the meeting to the absence of clauses in the draft Bill to give the President and the PM immunity.
They expressed fears that should the names of the President and PM come up during the trial of some suspects, they could be dragged to The Hague after leaving office.
Some MPs said they feared the President and the PM may not freely consult over the appointment of Kenyans to chair the Trial and Appeals Chambers due to the interference of the Head of Civil Service Francis Muthaura.
Water assistant minister Mwangi Kiunjuri reportedly warned of the dangers of letting through a clause which stated that it would require at least 50 per cent of the vote of the House to disband the Special Tribunal. Mr Kiunjuri said an aggrieved person could easily raise the numbers to disband the tribunal, according to those who attended.
Assistant minister Peter Munya ruled out reconciliation as proposed in the draft Bill and said those found guilty must face penalties equal to their crimes.
Assistant minister Charles Keter wondered how the authors of the draft Bill settled on December 3, 2007 and February 28, 2009 as the period of election violence.
He was supported by several MPs who said violence broke out after the Presidential elections results were announced.
Others who spoke were deputy PM Musalia Mudavadi and Cabinet ministers Martha Karua, Mutula Kilonzo, William Ruto, Sam Ongeri, James Orengo and Sally Kosgey.