Gitobu’s Bill sure to go through

Gitobu Imanyara’s Bill to amend the Constitution is sure to go trough Parliament and become law. It is the end of the road for post election violence planners and financiers who turned Kenya into a cesspool of tribalism . This is so because ODM has announced it will back the cantankerous Imenti Central politician’s determined move to put the culprits behind bars. And ODM controls Parliament. Yet this time ODM is backed by a number of other parties in calling for the establishment of a powerful and independent, internationally recognized tribunal to try the mass murderers of post election violence. There is no way the butchers of Rift Valley can escape the law this time. When Martha Karua brought her two Bills – The Constitution of Kenya Amendment Act of 2009 and The Special Tribunal of Kenya Statute of 2009 – before the House, Imanyara led a battalion of backbenchers to reject them. His reasons at that time were very solid.

The Bills had serious loopholes. The loopholes were the fact that the Bill did not clearly say that the President had no powers to pardon a person found guilty by the tribunal. It did not say that the Attorney General had no powers to enter a nolle prosequi when certain important people are prosecuted. The Bill did not say that the Chief Justice could not transfer Judges who appear to be incorruptible in the serious cases. For these reasons Gitobu mobilized the parliamentarians to reject Martha’s Bills and instead called for the trials of the suspects to go to The Hague where neither the president, the Attorney General nor the Chief Justice could interfere with them. Gitobu wanted Luis Moreno-Ocampo to prosecute the suspected Kenyans who include high ranking Ministers in the Kibaki-Raila Government.

Though backed by the majority of the people of Kenya, Imanyara’s rejection of Martha’s Bill was seriously criticized by the international community led by Kofi Anna, who issued a statement saying he was disappointed that the Constitution of Kenya Amendment Bill 2009, which would have paved the way for the establishment of a Special Tribunal in Kenya, was defeated in Parliament. According to Annan this development was a major setback to the implementation of the recommendations of the Commission of Inquiry into the Post-Election Violence (CIPEV).

He believed it was also a blow to efforts aimed at ending the culture of impunity in Kenya, which was a central objective of the Kenya National Dialogue and Reconciliation process. The respected international diplomat said ending impunity was critical to addressing the root causes of the crisis that engulfed Kenya last year. Despite this strongly worded statement, Imanyara and his group in Parliament, backed by the ordinary wananchi, were still calling for Moreno-Ocampo to step in. The suspects were too powerful to be tried in Kenya without the interference of the President and the Attorney General plus the Chief Justice.

This was the stand of the country until the American Secretary of State, Hillary Clinton visited the country and clearly explained to both the leaders and the wananchi the importance of conducting the trials locally. It was after this explanation that Gitobu Imanyara saw the light and drafted his Bill which among other things ensures that national immunities including the exercise of the prerogative of mercy shall not bar the Tribunal from exercising jurisdiction and further that the power of pardon shall not be exercised in respect of persons convicted for crimes under the Act. In particular the Imanyara’s Bill ensures investigative and prosecutorial autonomy for the Tribunal by excluding the Attorney-General’s powers under Section 26(3)-(8) of the Constitution. Under this section of the Constitution the Attorney General has powers to institute and undertake criminal proceedings against any person before any court, other than a court marshal, in respect of any offence alleged to have been committed or to take over and continue any such criminal proceedings that have been instituted or undertaken by another person or authority and to discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by himself or another person or authority.

In her Bill Martha explained to MPs that she had brought the Bill before Parliament as the result of the deliberations of the National Accord and Reconciliation Committee formed after the political crisis triggered by the disputed elections held on 27th December, 2007. She said the Committee held its deliberations under the auspices of the Panel of Eminent African Personalities comprising the former Secretary-General of the United Nations, His Excellency Kofi Annan, His Excellency Benjamin Mkapa, former President of the United Republic of Tanzania and Her Excellency Madam Graca Machel. She elaborated to the MPs that her Bill sought to implement the recommendations of the Commission of Inquiry into Post Election Violence submitted to the President on 16th October, 2008 (“the Waki Report”). The Bill proposed to introduce a new section 3A to anchor the Statute establishing the Special Tribunal for Kenya in the Constitution in order to insulate the Tribunal against objections on grounds of unconstitutionality.

Imanyara’s Bill takes care of that by making similar proposals. It is actually the work of Imanyara himself, Marta Karua and Mutula Kilonzo which shows clearly the group of people who are likely to support it.Raila could not afford to tarnish his name as a person backing impunity. His statesmanship was under scrutiny.So he has now mobilized everyone to back Imanyara's Bill. These will be the ODM, the Narc Kenya and the PNU. Those likely to oppose the Bill will be Kalenjin MPs led by William Ruto who will see it as a move to push the Agriculture Minister over the cliff. The result of the passage of the Bill through Parliament will be a serious security threat by the Kalenjins who will threaten to rise up in arms in defence of their tribal leader. Last time they were in the same mood was just before the 2007 elections and they were quite prepared, some would say even trained, to attack the Kikuyu community whether or not ODM lost the election. This time their threat will be against the rest of the country since the Bill is likely to get the support of everyone apart from the Kalenjins and Uhuru Kenyatta and his very few friends in Parliament.

The second group in Parliament that is likely to oppose the Bill, it is quite easy to guess, is that of Uhuru Kenyatta and his friends. The reason is that Kenyatta is said to be one of the suspects on Moreno-Ocampo’s list.These are the same people exposed by the KNCHR who the people would like to see fired by Kibaki and Raila . Short of that the people would like them to resign while waiting for Moreno-Ocampo. The passage of the Bill will anger the Mungiki terror group who are said to be on his payroll, and were used to create havoc at Naivasha during the post election violence. The question is who will the Mungiki threaten this time when the Bill seeks to punish those who attacked the Kikuyu community after the 2007 elections.Though Raila has his own way of dealing with the Mungiki gangsters, this time they have been caught between the Devil and the deep blue sea and the manner in which they will react to the Imanyara Bill, remains to be seen. So far the Kibaki- Raila Government has not prosecuted any Mungiki members who took part in mass murders of Naivasha where they were to have “retaliated” to the Kalenjin – Luo attacks. Will they escape the sharp eye of the independent investigators set up by the Imanyara Bill? Time alone will tell.