What you need to know:
- Imanyara: In this new Bill, we seek to amend the Constitution to remove the immunity of the President
Gitobu Imanyara has caused waves with a proposed Bill that would see the perpetrators of post-election violence face the law. He spoke to Sunday Nation’s ALPHONCE SHIUNDU about his plan
SUNDAY NATION:You led MPs in pushing for trials to take place at the International Criminal Court at The Hague. Why the change of heart?
Imanyara: We were never opposed to the local tribunal as such. I still stand for The Hague. We opposed the tribunal because the government had watered down the initial Bill. It had too many loopholes.
But the draft Bill that you are pushing now is similar to the one brought by the then Justice minister Martha Karua. Are you being sincere?
Yes, the draft Bill on our web site is just a working draft. We have tightened the initial Bill and introduced crucial amendments to make the proposed tribunal meet international standards. We’ll be publishing the revised version next week.
In this new Bill, we seek to amend the Constitution to remove the immunity of the President; quash the powers of the Attorney-General to take over or terminate cases, and ensure the tribunal’s operations are separated from the Judiciary.
We also have to protect the tribunal from High Court interference and force those indicted to leave office as soon as they are charged.
Other key elements we seek to achieve are to shield the tribunal from constitutional challenges of non-retroactivity of criminal legislation alongside exempting it from some provisions relating to the option of mercy. Financial independence is also key to the tribunal’s success.
These issues were raised in Parliament, yet you still threw out the Special Tribunal Bill. Why didn’t you just amend the government’s proposal?
When Parliament adopted the Waki Report we had a timetable for the implementation of the reform agenda. The government was late. So the only option left—Waki’s default clause—was to have the names in the envelope go to the ICC.
Having achieved that, Justice minister Mutula Kilonzo made another fairly credible attempt to establish a special tribunal taking all these into account. The Cabinet killed this dream; that’s why we moved in.
Just how do you suppose you will court ICC to work with the Special Tribunal?
In our revised Bill, we have introduced a clause to leverage on the International Crimes Act, which domesticates the ICC, to have the ICC try the masterminds while the tribunal goes for the small fish.
We can have the chance to use (International Criminal Tribunal for Rwanda facilities) Arusha, The Hague or all other facilities where the ICC has offices.
But that is different from the Sierra Leone model or even the Rwanda tribunal. Is it possible?
Yes, it is possible. Remember, the Sierra Leone government worked with the United Nations to set up their tribunal. The Rwanda tribunal was set up by a resolution of the UN Security Council. We’ll work with the ICC.
What if a person on the Waki list fails to meet the ICC threshold for evidence and is let off?
They will not escape blame by hiding behind double jeopardy – the constitutional right that forbids a defendant from being tried twice for the same crime on the same set of facts. The ICC has very high standards, so those who escape will have to face the tribunal in order to be cleared.
Looking at the draft Bill, there is a Special Magistrate’s Court as well as the Trial Chambers. Is this about having separate courts for the big fish and the small fish?
No. There are very specific cases, depending on the degree of the crimes committed. Serious crimes will just have to go to The Hague. And for quick dispensation of justice, we need not squeeze all the accused into the trial chamber when the special magistrates courts will do.
Is it possible that once a person is convicted, ethnic warlords will unleash militia on the people? And how will you prevent this?
Unfortunately, those fears are very credible. We are making provisions to have extreme instances of such cases be heard outside the country to prevent tribal warlords from whipping up sympathy from their kinsmen.
We cannot let that happen. Then again, we cannot fail to meet the challenge of impunity gnawing at us just because of that fear. We have to address it quickly. The international community has taken this fear into account.
Does this mean the international community is behind this Bill?
We welcome all the support we can get. It is about the future of the country. We have to fight impunity to deal with the corruption that has stagnated this country’s development.
The Federation of Women Lawyers and the Law Society of Kenya are behind this new move. Is it about jobs?
We respect the lawyers.
This is a matter of legislation, so we need them to get it right. Of course there will be jobs; they are the natural consequence whenever such bodies are set up. But this is not all this tribunal is about.
Fida was sent by 309 women’s groups to petition that special clauses be put into the Bill due to the nature of the crimes committed against women.
Why the online campaign and the civil society lobbying sessions? Shouldn’t you be going to the MPs because they are the ones who will vote?
MPs, and even ministers, are behind me on this. Of course, the ministers won’t come out publicly to say so due to the Cabinet resolution.
The few who have come out in support have proved the point. Most MPs know this is the only chance to fight impunity, otherwise all this talk about reforms is an exercise in futility.
The online campaign and the civil society lobbying is meant to get the public behind this tribunal. We have to move together if we have to succeed.
The web site (www.endimpunityinkenya.com) had 3,800 comments and more than 100,000 hits in just four days.
Some of the comments on the web site question your motive and those of the backbenchers. Some say MPs just want to outshine the Cabinet for the sake of it. Others say the immunity clause and the push for The Hague is all about your grudge against the First Family. There are also allegations that MPs are supporting this so that they can get a chance to “eat” when the ministers or their assistants are indicted. Comment.
I have read all that. But let’s not kill the messenger; we have to listen to the message. The people saying that are using every method to ensure that the tribunal is not set up. They would say anything. But then, who does not recognise the need for this Bill?