The clause in the Waki Report that recommended such action was struck out after intense lobbying at the Serena Committee and at the Parliamentary Committee on Legal Affairs levels.
A copy of one of the final drafts of the Constitution of Kenya (Amendment) Bill, 2009 and the Statute for the Special Tribunal for Kenya obtained by The Standard revealed the clause had been deleted.
Central Imenti MP Gitobu Imanyara, who is a lawyer, said: "The Bill is totally unacceptable. It cannot pass in its present form and will fall short of the 148 MPs required for a constitutional amendment."
"The aim is obviousÃ¢â‚¬Â¦ to create delays and plot how to block Kenya from going to The Hague by claiming the process is on track. I can assure you we will battle those seeking to entrench impunity," he added.
Mr Imanyara warned the Government to ensure important clauses raised by Human Rights Watch, legal experts and the international community were followed or risk having the implicated leaders carted to The Hague.
Gem MP Jakoyo Midiwo said the Waki Report had laid a good foundation for the tribunal, but they expected drafters to factor in the concerns raised by law experts locally and internationally.
Ministers bitterly differed in the Cabinet meeting last Thursday over clauses in the draft law, prompting the matter to be referred to the Legal Affairs and Administration Committee in Parliament.
It appeared high level politicking had influenced certain clauses to be friendly to politicians involved, as part of the reconciliation.
The two Bills are to be presented to Parliament to facilitate the establishment of the Special Tribunal, as Parliament rushed to beat the deadline that would consign suspects for Trial at the International Criminal Court in The Hague, Netherlands.
Specifically, the Waki Report recommended "all persons holding public office and public servants charged with criminal offences related to post-election violence be suspended from duty until the matter is fully adjudicated upon".
Barred from office
The Waki Report similarly recommended, "Upon conviction of any person charged with post-election violence offences of any nature, such persons shall be barred from holding any public office or contesting any electoral position."
Kenya has three days to ensure it passes the Constitution of Kenya (Amendment) Bill 2009, which will pave way for the creation of a parallel judiciary to try the violence suspects.
It was not immediately clear if a final moderation of the draft would be amended further to include the clause, even as Law Society of Kenya (LSK) Chairman Okong'o Omogeni met with the Parliamentary Committee of Legal Affairs and Administration over loopholes in the Draft Bill.
Constitutional Bills are not subjected to amendments when tabled before the House and are passed in their published or original form.
It also emerged that Kenyans may have to wait to know the names of perpetrators of violence Ã¢â‚¬â€ sent in a sealed envelop to chief mediator Dr Kofi Annan Ã¢â‚¬â€ until they are charged before the Special Tribunal.
A special clause barring the publishing of names of suspects is prohibited in the final draft that lawyers were poring over last evening.
Some 1,500 people died in post-election violence and 300,000 displaced. -Â The StandardPost published in: Uncategorized