The Bill seeking to establish a special tribunal in the Constitution
could get the support of only 101 MPs, well short of the 145 required
to amend the constitution.
Ninety three MPs voted to sink the Bill, even though President Mwai
Kibaki and Prime Minister Raila Odinga attended parliament to vote and
rally support.
There were 195 MPs in Parliament during voting, with 93, nearly half of
the House, voting against the Bill and Deputy Speaker Farah Maalim
declining to vote. In total there are 222 MPs.
As far as the current session of Parliament is concerned, the
Constitution of Kenya (Amendment) Bill 2009 is history. And according
to the timetable established by the Commission of Inquiry into the
Post-Election Violence chaired by appellate judge Philip Waki, the
chairman of the Panel of Eminent African Personalities Kofi Annan, can
hand over the list of the masterminds of the election bloodshed to an
international court for investigation and trial.
The Waki commission had given the government up to March 1 to have the
special tribunal up and running. After the defeat, the Bill cannot be
re-introduced in this session of Parliament.
Since MPs did not take the long recess at year end and were recalled to
deal with the tribunal and other urgent laws, the President may
prorogue Parliament, recall it almost immediately and re-introduce the
Bill in the hope that it will be passed.
Some 1,333 were killed and more than 600,000 displaced after the
presidential election in 2007 degenerated into an orgy of ethnic
cleansing and revenge massacres. Mobs looted and torched businesses in
many parts of the country, while others blocked main roads and burnt
trucks to paralyse the country.
As part of a deal mediated by Mr Annan, Kenya agreed to investigate the
conduct of the election, investigate the violence and its causes and
carry out wide ranging reforms. The investigation of the conduct of the
election was inconclusive with regard to establishing the true outcome
of the poll, but it did propose wide-ranging changes to the electoral
system which are being implemented.
The establishment of a special court to try locally those suspected of
having instigated the chaos has been thrown into disarray by the defeat
in the House.
National Assembly Speaker Kenneth Marende declared to a silent House
that the Bill moved by Justice, National Cohesion and Constitutional
Affairs Minister Martha Karua had been lost at 5.40 pm attracting
applause from members opposed to it. He cited parliamentary rules
before declaring the Bill negative and therefore lost.
Lobbying
The vote comes after weeks of debate and lobbying by those supporting
the Bill on one hand and those against it on the other. MPs opposed to
the Bill, led by Imenti Central's Gitobu Imanyara (CCU), said they did
not have faith in Kenya's justice system and that those involved in the
violence should be tried at The Hague.
President Kibaki, Mr Odinga and Ms Karua, led those backing the Bill
saying a local tribunal was the best for Kenya. The international
community and civil society have also been pushing for a local tribunal
saying it was the only way to ensure quick justice.
Last Thursday, a vote on the amendments was re-scheduled due to a lack
of quorum. A vote cannot be held on a constitutional Bill unless 145
MPs are present. On Tuesday, the Bill was removed from the list of
issues to be debated to give the government time to marshal support.
Mr Justice Waki handed a sealed list of suspects to Mr Annan, which was
to be forwarded to the International Criminal Court if the Government
failed to implement the probe team's recommendations.
On Thursday, MPs opposed to the formation of a Special Tribunal made
several attempts to stop voting. First, Ikolomani MP Bonny Khalwale
(New Ford Kenya) argued that the presence of President Kibaki and Prime
Minister Raila Odinga would interfere with the independence of the
House.
Dr Khalwale also tabled a letter written by Head of Civil Service and
Secretary to the Cabinet Francis Muthaura to Cabinet ministers and
their assistants directing them to be in the House at 2.30 and vote in
favour of the Bill.
Dr Khalwale said it was wrong for Mr Muthaura to write to the ministers
since he was not a member of the House, its whip, Leader of Government
Business or coordinator and supervisor of government functions.
Vice-President Kalonzo Musyoka, who is Leader of Government Business,
defended Mr Muthaura's move, saying he acted on behalf of the Office of
the President. The Mwingi North MP said President Kibaki and Mr Odinga
had also directed the ministers to support the Bills during a meeting
on Tuesday.
Justice, National Cohesion and Constitutional Affairs Minister Martha
Karua also came to the defence of Mr Muthaura saying it is the
government that decides how to whip its members. The Gichugu MP was
supported by Turkana Central MP Ekwe Ethuro who said the government
lobbied its own side.
Attorney General Amos Wako took issue with MPs who were delaying the
vote through numerous points of order saying they were the same ones
who complained when ministers failed to attend Parliament.
In his ruling, Mr Marende said Mr Muthaura's letter to ministers had
nothing to do with Parliament's independence. It was not addressed to
MPs or copied to the Speaker nor the Clerk of National Assembly, Mr
Marende said. He said it was up to the Executive to lobby its members
the way it wanted.
Block the voting
Mr Imanyara also tried to block the voting arguing it had earlier been
set for next Tuesday. Mr Musyoka and Mr Marende, however, disagreed
with him saying the House Business Committee decides matters that
appear on the order paper. Voting started at 4.53 and it took the MPs
less than 30 minutes to kill the Bill.
If the President does not prorogue Parliament, the Bill cannot be
re-introduced until after six months have passed, long after the expiry
of the March 1 Waki deadline.
During the vote, MPs, some who are close allies of key Cabinet
ministers who are believed to have been named in the Waki, voted
against the Bill, which was pronounced lost to shouts of The Hague! The
Hague! from the opposition benches as President Kibaki, Mr Odinga and
Mr Musyoka watched quietly.
Assistant ministers Danson Mungatana, Calist Mwatela and Wilfred
Machage defied the government and voted with the opposition. Speaking
later, Ms Karua said the Government would go back to the drawing board
to ensure that justice is done. She said the fate of six Cabinet
ministers and five MPs suspected to be in the Waki list would be
decided by Mr Annan on the basis of the recommendations of the Waki
report.
The fate of the planners and financiers of the violence is now in the
hands of Mr Annan and the recommendations of the Waki report. We as a
government have to come out and tell our people that The Hague is a
last resort, not an option.
The justice minister also appeared to question the political will of
President Kibaki and Mr Odinga to implement the radical reforms in the
National Accord, including trial of the suspects by a local tribunal.
Ms Karua said the Government has to find ways of trying the rapists and
murderers given that the key architects may go to The Hague.
Mr Annan will now consult the President and the PM to agree on the way
forward on the fate of the suspects. The former UN secretary general
may make preparations to hand over the case to the International
Criminal Court. Alternatively, Mr Annan can borrow from he example of
Sierra Leone and engage the UN headquarters in negotiations to
establish a Special Court in Kenya to try the suspects.
After President Kibaki and Mr Odinga signed the agreement to establish
a local tribunal on December 17, Parliament was required to enact the
law for the Special Tribunal and entrench it in the Constitution by
January 30. The tribunal was supposed to start operating by March 1.
Thursday's vote was preceded by lobbying which intensified on Wednesday
night. The triumphant MPs strategised in groups in Parliament Buildings
and their offices.
Some MPs said they were alarmed that an amendment was already listed to
delete Article 14, effectively granting immunity to some office
holders. Led by MPs Gitobu Imanyara and Bonny Khalwale, they caucused
on Wednesday night and sent text messages to their colleagues urging
them to block the Bill.