Am raising the level of debate so that there can be intervention from serious minds.

When Parliament voted recently to shoot down the Constitutional [Amendment] Bill 2009, many Kenyans thought that at last, Members of Parliament were becoming assertive and in that process, getting on to the road of redeeming Kenya.

This was rudely shattered by the same Members when on Thursday 19th February, 2009 members voted to save Hon William Ruto from taking responsibility of the intentional mess in his Ministry of Agriculture. In doing this, we again saw the Kenyan Contraction at play. One minute being able to be relied upon, the next minute behaving as if they own Kenya and in that, willing traders who can auction Kenya to the highest bidder.

However, what were the issues that informed the shooting down of the Constitutional [Amendment] Bill 2009?

The Bill wanted to create a local Tribunal that would mete out justice to the post election violence perpetrators. In this process, the Bill called for the creation of six departments that would be functional for that to succeed.

1] Special Magistrates Courts; in my understanding, this was to be set up to try all the lesser offenders. How less an offence was going to be categorized, I still do not know. If you kill one person and the other kills 10 people, I do not know whether the law would declare the one who killed one person as the lesser offender. I bet you are all murderers and in the eye of the law, must be treated so.

2] Trial Chamber; this was to be set up for the big boys. In my view, this would have been contradictory and segregative. All offenders should be treated equal and subjected to the full force of the law in the same manner.

3] Appeal Chamber; this was to hear all the appeals emanating from the trials.

4] Office of the Defender; this was to create a mechanism through which those violence victims who could not access legal services had support.

5] Office of the Prosecutor; this is the wing that had to prosecute all the cases.

6] The Registry; this is where all records of the Tribunal would be.

This in my view, and I stand to be corrected by constitutional lawyers, was going to create a parallel legal system in Kenya and in the process, it was going to blur the implementation of justice to all. Just like the Kenya Anti Corruption Commission was created to blur the performance of the Criminal Investigation Department in the Police Force. In the process, conflict of interest would prevail at the expense of justice.

Such a process, besides being segregative, would accord the big boys means by which to escape justice. They would manipulate the process and walk away free.

The Bill also had a clause which would protect the big boys. If you were a cabinet minister, you do not resign as you are being investigated, as you attend court until you are convicted while the lesser offenders would be promptly arrested and subjected to the bailing process depending on the gravity of the offence.

It was also silent on how The President and The Prime Minister would be treated for they must surely be in the said envelop. They are the main people for whom Kenyans turned to violence. What about the Electoral Commission who botched the whole process?

Section 14 in our constitution gives the President immunity against being tried while in office. How are we going to handle this, for surely, his name must be in the envelop? What about the Prime Minister who signed an Accord that made him equal Partner to the President?

Section 26 gives our ever smiling Attorney General powers to take over any case and terminate the same. How sure are we that Hon Amos Wako will not take over the cases involving the big boys and so terminate them? Section 27 gives the President Powers of clemency. He can choose to pardon any offender immediately the trial ends. How are we sure these powers vested in the constitution will not be abused in defense of impunity.

This Bill was an attempt to hood wink Kenyans that at last something was going to be done. History shows us that after the clashes of 1992, the Kiliku Report was handed to the President and nothing was done. After the 1997 clashes, the Akiwumi Report, [He must be very lucky man, he is now chairing a Committee to improve the pay package of MPs], was handed over to the President and nothing was done.

Members of Parliament hence did well to shoot this Bill down. I do not know whether they understood it well to shoot it down, or they were playing to the gallery because the following week they sent out wrong signals by voting massively to entrench impunity, in their ill support of Hon William Ruto.

It was going to be a process, just like Hon John Michuki said, where the Executive was going to control the process. At least we have honest people like Michuki who tell us the truth. He told us earlier that they only wanted a new constitution to enable them remove the former President Moi from office, or force him to share power. After they won and Kibaki became the President, there was no more need for agitating for a new constitutional dispensation. That was vantage Michuki.

In conclusion, where do we head with this process? I bet, and in this I am in agreement with Dr. PLO Lumumba, that we should go the Sierra Leone way. We must petition the United Nations Security Council to set up a Special Court process for the Kenyan case. All those amidst us who have been named in the said envelop, for we must know the first three of them, The President, The Prime Minister and The Chairman of the Electoral Commission, must vacate office as they await trial for crimes against humanity.

Odhiambo T Oketch,

CEO KCDN Nairobi,
Tel; 0735 529 126, 0724 365 557,
Email; komarockswatch@yahoo.com
http://kcdnkomarockswatch.blogspot.com
Komarock Nairobi.

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Date: Wed, 25 Feb 2009 22:38:23 -0800 [12:38:23 AM CST]
From: odhiambo okecth
Subject: Constitutional [Amendment] Bill 2009