Thursday, August 13, 2009

Private Member Bill on Special Tribunal To be Introduced

As attacks against government mount (because of its decision to ditch the special tribunal), a Member of Parliament Gitobu Imanyara is to introduce a Private Member's Bill in Parliament to ensure the Special Tribunal is established.This is an initiative of the Law Society of Kenya, Mr Imanyara and a number of 'like minded' MPs.

Unlike the previous Bill that failed in Parliament, the law proposed by the MP removes the immunity from prosecution enjoyed by the President. This was a contentious issue at that time and in recent Cabinet meetings where the ICC was discussed. The proposed Bill also strips the President of his powers to grant pardon to convicted individuals. The bill also aims to establish investigative and prosecutorial autonomy for the Tribunal by excluding the Attorney-General’s powers under Section 26(3)-(8) of the Constitution. Under that section, the AG is solely responsible for criminal prosecutions and reserves the power to terminate any criminal proceedings anytime before conviction.This power has been used in the past under very contentious circumstances.

In a move that is unprecedented in Kenya's legislative history - but which undoubtedly reveals the desperation of those pushing for it, as well as the fear that the initiative will be killed at one stage or the other of the legislative process -, the Bill seeks to exempt the Act from the provisions of Section 46(2) of the Constitution, in terms of which all bills passed by Parliament have to be assented by the President to become law. For the attempted exclusion of Presidential attempt and other reasons, one commentator has declared the Bill as 'hot air', 'legally repulsive' , 'impracticable' and a 'non-starter'.

The Bill also contains language that ensures that there will be no requirement of consent of President to incur expenditure as per Section 48 of the Constitution. Typically, when a law is proposed by a private member, government usually takes the initiative over if it involves expenditure. The language is meant to ensure that the legislative initiative is not hijacked by government in view of cabinet's resolution not to establish a special tribunal.

It remains to be see how this turns out. What is for sure us that a new battle front has been opened within government factions as well as between cabinet and parliament. While the proponents of the latest initiative suggest that the public can participate (they have launched a website:, the citizens and victims remain spectators in this evolving saga.

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