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"id": 194972,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/194972/?format=api",
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"type": "speech",
"speaker_name": "Mr. Mungatana",
"speaker_title": "The Assistant Minister for Medical Services",
"speaker": {
"id": 185,
"legal_name": "Danson Buya Mungatana",
"slug": "danson-mungatana"
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"content": "Mr. Temporary Deputy Speaker, Sir, during the electioneering periods we have witnessed in the past, there were extremely dangerous statements uttered in the sense of rallying certain communities or a certain community against another community for the sole purpose of gaining political mileage. One of the things that has been stated in this Bill by the Attorney-General is in Clause 6. It is about international crimes. It is a good reminder to all of us as leaders. We are reminded that the international crimes punishable under this law are the crimes against humanity. It is appended at the backside of this Bill, Article 7(h). It says:- 914 PARLIAMENTARY DEBATES May 7, 2008 \"Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognised as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court.\" Mr. Temporary Deputy Speaker, Sir, any persecution or planning hatred and speaking against communities for political advantage is actually covered under this Bill as one of the crimes against humanity. Mr. Temporary Deputy Speaker, Sir, the passing of this Bill is a reminder to all of us to have some form of responsibility even as we seek to rally support around ourselves during electioneering because it has been repeated so many times. It has become like a cancer in this country. One of the good things that has happened is that none of the people in Kenya have reached that level where people have been punished or brought to trial before the International Criminal Court (ICC). We hope it will never ever reach to that level. That is why it is a good thing for us to highlight this Bill. In fact, we should domesticate it and tell ourselves that we will not wage hatred campaigns against communities. This is not just at the national level, but even clans like in our own little areas where we come from. People come up with such terrible stories about other clans just because someone wants to gain political advantage. It is good that this Bill should now become part of the laws of this country in order that we highlight that this is not something acceptable in the present Kenya that we live in. Mr. Temporary Deputy Speaker, Sir, having said that, one of the very good things that was agreed upon by the people who were negotiating in the National Accord and Reconciliation Act was to bring the Ethnic Relations Bill. The Ethnic Relations Bill is a more positive approach towards the problem that is sought to be addressed in this Bill. I would have hoped and wished that the Ethnic Relations Bill could have come even earlier than this one. It would have been much more specific to our situation and responsive to our country's situation. It would also have come from the angle of promoting healthy relations among communities, rather than the way this one now is coming, where there is just a punishment that is being levelled against any person who commits crimes against humanity in that sense. Mr. Temporary Deputy Speaker, Sir, the other thing that needs to be said about this Bill is that it is a Bill that is basically targeting political leaders in Kenya. Today's Press is full of what the country is doing to have the properties of a suspect of the ICC, Mr. Felician Kabuga, seized through legal means. He was a politician of great substance in his country. We have also been told about the former President of Liberia, Charles Taylor. That is also a politician. Mr. Temporary Deputy Speaker, Sir, a few days ago, summons were issued against another politician in the Congo because he was the field commander of child soldiers. There were crimes against humanity that were opened against him. He is supposed to be arrested and brought for prosecution. In Uganda, there is Kony who we all know has summons that are awaiting for prosecution, and he is yet to be arrested. If you look at all the people who have appeared before the ICC from the African continent, they have been people of great political standing in their own countries. I am mentioning this so that we can know what we are passing here. Mr. Temporary Deputy Speaker, Sir, when I look at Article No.27 which is attached to the back of the Bill, it is very clear. I will take the liberty to read it. It says:- \"The Statute shall apply equally to all persons without distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or Parliament, an elected representative or a Government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.\" May 7, 2008 PARLIAMENTARY DEBATES 915 What we are saying is that a clear message needs to go to ourselves. In fact, we are preaching to ourselves that there will be no running away. Like the Minister said, you may run but you will never hide. Article 29 of the Rome Statute, if I could read it again, makes it very clear that the crimes within the jurisdiction of the ICC, the international crimes, shall not be subject to any statutes of limitation. We are saying that today you will be the President of the Republic of Kenya and we may not be able to touch you. Today you may be the Minister and we may not be able to touch but there is no limitation. That means that if you commit those crimes now and we cannot touch you, we will follow you after your term is over. At this time, it is another thing that we are preaching to ourselves. There will be no limitation of those crimes that you will commit against the people of Kenya. What I am saying is that time has come for us even to re-define the way we relate as political parties; how we campaign, the messages we send to our people. Time has come for us to really take responsibility. It will be very sad, as we all know, for any person, be it an hon. Member or a Minister, who has served this nation in the official capacity, that is in public office, for him to be a subject of trial for crimes against humanity. So, I think this statute, to me, not only brings Kenya to a level of international criminal jurisprudence that is desirable, but it is also the kind of statute that gives a warning - I hope we will all read it and understand it as we pass it - to all of us that we need to be responsible officials. Mr. Temporary Deputy Speaker, Sir, one of the things that I wanted to bring to the attention of the Attorney-General and the Departmental Committee on Administration of Justice and Legal Affairs when they are looking at the Bill at the Committee Stage is Clause 80. Clause 80 of the proposed Bill talks very well about the question of witness protection. As I have pointed out, the kind of people who are normally suspects in these types of crime are people of high standing in society, at least, in the African experience so far. We have mentioned the names. It is absolutely important for the witnesses to be properly protected. Which country are they going to live in? If for example, you are taking a person to be charged on crimes against humanity or genocide he committed in his state and he is being judged or tried somewhere, which witness will be totally safe to still remain in the country of origin? This is why I am saying that I am totally unsatisfied with the way the proposed Clause 80 has handled the question of witness protection. Mr. Temporary Deputy Speakerm, Sir, what I know is that for these witnesses, there must be a provision and I propose that it should be included somewhere. These people cannot continue to be in their original identification. For example, if Mr. Mungatana gives evidence in such a case, God forbid if it happened in this country, there will be a big section of people who support the accused person. It will be unsafe to retain the same identity. I have argued this point before when we were debating the Witness Protection Bill in this House. I have said, and I think we should have it here now, that it is not enough to just give nice provisions without making a very clear provision of how someone will completely hide his identity, lose it and be given a fresh one so that this person can even cease. His records can be changed efficiently and effectively so that he can be protected. His life can even begin in another country so that we can have witnesses properly protected and give useful information to the International Criminal Court (ICC). If we hope to get any convictions, then the witnesses must be protected. This is why I have argued, and I argue again, that there must be a fund established for that purpose. This fund should be clearly stated in this statute and well provided for. If this is an international matter, then there must be an international fund that is set up. That fund must be accessed by the Kenya Government. For example, if we have been asked to provide witnesses, then there must be a mechanism in which money will be accessed; and not just us cutting from our little budget here. Money must be accessed, provided to those potential witnesses, their identities and everything taken care of so that 916 PARLIAMENTARY DEBATES May 7, 2008 when they go, they will not be subject to harassment and maybe even loss of their own life because they co-operated by giving evidence against people who committed crimes against humanity. Mr. Temporary Deputy Speaker, Sir, I am also looking at the fact that we, as a nation, have in the past co-operated very well with international bodies. However, if you look at what we have been given back or what our people have received in return, it is very little. If you look at Article 36 of the Rome Statute and the qualifications the judges are supposed to have and all the things that they are supposed to attain before they can even contest to be elected to be amongst the 18 judges, it will take a long time before we get a judgeship in the ICC. If we are not getting a judgeship in the ICC, what strategies will the Attorney-General take to ensure that, at least, we have representation or our people up there? We will be required to make payments to support that court and its structures. Even as we pay the taxes to keep those big time lawyers and judges seated at The Hague, how many of our people will be able to access there? I think whether through the Ministry of Foreign Affairs, the Attorney-General's Chamber itself, there has to be a clear method because we have an extremely poor ratio, let me admit of this state, in most international bodies. Here we are, we are co-operating; it means we will be also paying. How many of our people really are there? If you look at a state like Tanzania, we have very highly placed people seated in UN bodies from Tanzania just here in our backyard. In Kenya, I do not know at what level we are now getting into the UN system. We are so far away down. This point needs to be addressed. Even as we go on to pass this Bill, it is important for us to start thinking of strategy. This lies squarely in the Office of the Attorney-General and the Ministry of Foreign Affairs. How are we going to get our lawyers and judges to also be part and parcel of the system in the ICC so that we can be said to be benefiting directly? That issue needs to be taken up seriously because Kenya is truly under-represented. Mr. Temporary Deputy Speaker, Sir, Kenya is truly under-represented; we have such a big name in the whole continent but when it comes to real negotiating and pushing for our people to have positions, we are not doing well at all. You never hear of any Kenyan in, for example, a World Health Organization (WHO) position, United Nations (UN) or in any other good position in world organizations. With those few remarks, I want to say, as the Attorney-General said, that this is a good Bill that we need to pass. It is the kind of statute that we should not have too much argument about. It is the kind of statute that will help Kenya come to the same level as the rest of the world in terms of international criminal jurisprudence. It is the kind of statute that we should pass very quickly to help our country take the right position in international standing. I beg to support. Thank you."
}