MPs' U-turn on tribunal comes under scrutiny

By ALEX NDEGWA
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