Kenya MPs fight to kill Hague trials......


JF-Expert Member
Sep 24, 2010
Kenya MPs fight to kill Hague trials

During a Parliament session on December 16, 2010, Prime Minister Raila Odinga criticised MPs who were pushing for Kenya’s withdrawal from the Rome Statute, saying, they were the very ones who frustrated the government’s efforts to set up a local tribunal early this year. Photo/FILE
By ALPHONCE SHIUNDU and PETER LEFTIE pmutibo@ke.nationmedia.comPosted Thursday, December 16 2010 at 22:25

Parliament was sharply divided on Thursday over attempts to rescue six prominent Kenyans from facing criminal charges at The Hague.

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A section of MPs thwarted attempts by Chepalungu’s Isaac Ruto to move a motion asking Kenya to withdraw from the Rome Statute on grounds that it was unconstitutional.

This came as the government promised to ensure that the country sets up a credible judicial mechanism to try post-election violence suspects by April next year in order to save the six from prosecution at the International Criminal Court.

Prime Minister Raila Odinga told MPs that the government was exploring four options to stop the six suspects named by Chief Prosecutor Luis Moreno-Ocampo from the trip to The Hague.

On Wednesday, Mr Moreno-Ocampo named politicians Uhuru Kenyatta, Henry Kosgey and Wiliam Ruto and civil servants Francis Muthaura and Hussein Ali and journalist Joshua arap Sang as the people he wants to indict for the 2008 chaos.

The four options, Mr Odinga said, included setting up a credible local judicial mechanism or seeking a resolution of the United Nations Security Council to defer the ICC process against the suspects.

Other options entailed Kenya withdrawing from the Rome Statute or letting the ICC prosecutions to proceed.

Deferment of ICC process

The PM maintained that the most viable option was to set up a local tribunal as a withdrawal from the Rome Statute or the deferment of the ICC process would not save the six accused persons from facing charges at The Hague.

Mr Odinga criticised MPs who were pushing for Kenya’s withdrawal from the Rome Statute, saying, they were the very ones who frustrated the government’s efforts to set up a local tribunal early this year.

“Mr Ruto (Isaac) said that we should not be vague, we want The Hague, it is Ruto who took us to The Hague, Mr Speaker,” Mr Odinga charged.

During debate on Mr Ruto’s motion asking Parliament to pass a resolution asking Kenya to pull out of the Rome Statute, Justice Minister Mutula Kilonzo and MPs Martha Karua, Danson Mungatana and Gitobu Imanyara reminded Parliament that the motion infringed on the new Constitution.

They cited two clauses in the Constitution — article 2(5) and article 2(6) — to question the validity of the motion. The two clauses expressly direct that all ratified conventions and general rules of international law shall form part of the law of Kenya and the Constitution.

The debate had earlier in the day been delayed, but when it came up later, MPs sought direction from deputy Speaker Farah Maalim on its constitutional validity.

Though the Deputy Speaker did not rule on the question of validity, it was apparent that there was no legal basis to have the motion in the House, at least going by the contribution of Mr Kilonzo and Ms Karua.

The emotional push to have the debate proceed floundered when Mr Mungatana turned the heat on the House Business Committee, Mr Ruto and the seconder Jeremiah Kioni (Ndaragwa, PNU), seeking to know how they could seek to amend the Constitution through a motion.

“The day we promulgated our Constitution, any treaty that we signed, and ratified, including the Rome Statute, became part of the Constitution. We cannot amend the substantive law of this country through a motion of this nature.

“This is a wrong procedure. The House cannot be allowed to engage in a matter that is contrary to the Constitution we want to uphold,” Mr Mungatana said.

The Justice Minister said the issue had to be handled “very carefully” saying that the Rome Statute was adopted “not long ago” by the same MPs when they approved the International Crimes Act in 2008.

Mr Kilonzo, together with Dr Boni Khalwale (Ikolomani, New Ford Kenya) reminded MPs that the statute was the First Schedule of the Act, and it was wrong to try to amend it through a motion.

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JF-Expert Member
Sep 24, 2010
Tatizo kwa Bunge la Kenya Ocampo kasema wale watuhumiwa sita ICC itaendelea nao hata kama Kenya ikianzisha Mahakama Tribunal........... au hata kama wakijitoa ICC..............


JF-Expert Member
Sep 24, 2010
MPs' U-turn on tribunal comes under scrutiny

Updated 11 hr(s) 11 min(s) ago


The reality that the International Criminal Court means business has prompted some MPs to backtrack on their preference for The Hague-based court to prosecute post-election violence cases.

A look at how MPs voted two years ago when a Bill seeking to establish a Special Tribunal was frustrated shows most of the MPs who preferred The Hague option have now made a U-turn, renouncing the ICC.
Then the majority of MPs roared: "Let us not be vague; it's The Hague". It is most of those MPs who are now lobbying for a Motion to have Kenya withdraw from the Rome Statute, which establishes the ICC.
The Bill, moved by then Justice Minister Martha Karua, garnered a narrow majority of 101 to 93. However, this was not enough because a constitutional amendment must be supported by 65 per cent of members or 145 of 222 MPs to pass.
Consequently, the Special Tribunal for Kenya Bill 2009, was thrown out without as much as a glance because it was a prerequisite the Constitution be first amended to cushion the tribunal against legal challenges.
Special tribunal

Not even the presence of President Kibaki and Prime Minister Raila Odinga in Parliament on the afternoon of February 12, last year, was enough to persuade the MPs to agree to the formation of a special tribunal.
That was on the afternoon of February 12, last year, when MPs shot down the Constitution of Kenya (amendment) Bill, which would have paved the way for the creation of a special tribunal.

At one time when then Nairobi Metropolitan Minister Mutula Kilonzo, now the Justice Minister, likened the failure to establish a tribunal to paying homage to mandarins of impunity, an MP shouted: "Watapanda ndege!" (Let them be flown out!).
Chepalungu MP Isaac Ruto, the architect of the Motion this week to repeal the International Crimes Act and have the country sever links with the ICC, is among those who voted against the constitutional amendment.
So did Rift Valley MPs allied to Eldoret North MP, William Ruto, and a section of central Kenya legislators now infuriated by the action by ICC Prosecutor Luis Moreno-Ocampo to name six prominent individuals against whom he has filed two cases over post-election violence.

Water Assistant Minister Ferdinard Waititu, who joined a demonstration in the city on Friday, to condemn the ICC, was among those who rejected the tribunal in favour of The Hague.
In Parliament on Thursday, Prime Minister Raila Odinga told the Chepalungu MP: "You said let us not be vague; we want The Hague. You are the one who took us to The Hague."
But while moving the Motion to cut links with the ICC earlier, Ruto had clarified his move should not be misconstrued to imply he now embraced the special tribunal.
Change of mind

Yesterday, Metropolitan Minister Robinson Githae said he has changed his mind because Ocampo was no longer fair and has politicised the process.
"Ocampo's naming of the suspects shows that we (Kenyans) can do better than what he did," noted Githae, in a phone interview.
He wondered how former Commissioner Hussein Ali's name and that of the Head of Civil Service, Francis Muthaura, were included in the list.

Githae said were it not for Ali, Nairobi would have been looted, adding the former police commissioner secured the metropolis against looters. Ndaragwa MP Jeremiah Kioni, who seconded Ruto's Motion, had voted for the Bill to establish the tribunal.
Such was the Government determination to avoid The Hague option that the Office of the President had sent out letters to ministers and assistant ministers instructing them to attend the crucial session.
The letter written by the Head of Civil Service Francis Muthaura sparked controversy, with Ikolomani MP Bonny Khalwale suggesting it would intimidate members.

But Karua countered the Government had the right to whip members in whichever manner it pleased.
Vice-President Kalonzo Musyoka added the President and Prime Minister meeting on the eve of the vote had issued the directive. Speaker Kenneth Marende ruled it was proper since it was addressed to members of the Government.
All Cabinet ministers, including Henry Kosgey, Uhuru Kenyatta and William Ruto, who were among those named by Moreno-Ocampo on Wednesday, voted for the constitutional amendment to create the tribunal. Members of Government who defied collective responsibility to reject the constitutional amendment included then Medical Services Assistant Minister, Danson Mungatana, and Wilfred Machage.

Then the opposition to local trials was widely considered a marriage of convenience.
Powerful individuals
Some members genuinely feared a local tribunal could be subverted by powerful figures.
Others were determined to shield political allies in the mistaken belief The Hague would take ages to act, and yet others were ambivalent.
During debate on Thursday, Karua reminded members their actions two years ago had returned to haunt them, as she opposed the Motion to withdraw from the ICC on constitutional grounds.

"If The Hague is our misfortune we are the authors of our own misfortune.
"I shouted myself hoarse from the dispatch box lobbying for a local tribunal as members walked out," Karua told jeering members.
The MPs can only rue the missed opportunity and they wish they had heeded the call for a local judicial mechanism by the likes of Mohammed Abdikadir, then chairman of the Justice and Legal Affairs committee.

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