Dossier: House on the spot over authentication of documents
By Lillian Aluanga
Tabling of a controversial dossier alleging Britain’s interference with Kenya’s cases at the ICC has raised questions on mechanisms used to determine the authenticity of documents presented to Parliament.
Yatta MP Charles Kilonzo tabled a document that alleged plans to have Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto arrested by the International Criminal Court. It also alleged the The Hague court was planning to have President Kibaki indicted.
The British High Commission has since dismissed the document saying it was not genuine and was aimed at straining relations between the two countries ahead of the elections.
At some point during proceedings in Parliament, Deputy Speaker Farah Maalim stopped discussion on the document, ruling that a substantive Motion first be filed for debate on the matter to continue.
Speaker Kenneth Marende ruled that admissibility of the document could not be challenged and said he was satisfied that Maalim "properly exercised his mind in ascertaining that the document met the threshold of authenticity in the House because it was dated and had a signature".
House Committee on Defence and Foreign Relations is already looking into the matter, with Foreign Affairs Minister Moses Wetangula saying the National Security Intelligence Service (NSIS) had "urged caution" regarding the document.
Debate over the controversial document has generated calls for raising the threshold that allows tabling of documents in Parliament to minimise risks of parliamentary privilege abuse by legislators.
Haki Focus Executive Director Haroun Ndubi says there is need to strengthen Parliament’s internal verification systems to erase doubts such as those expressed on the authenticity of the document.
"This is not just about the document in question but for scenarios that may arise in future where individuals’ reputations are at stake. For instance, under the new Constitution we will have Cabinet Secretaries who are not even MPs. This means such individuals will have no chance to defend themselves in Parliament should a document that casts them in bad light be presented on the floor of the House," he says.
Currently the practice has been for the House Speaker or the Deputy Speaker to check among other things whether a document is dated, has the name of the author and signature appended to it.
But there is a feeling that the threshold, as a matter of practice for all documents tabled in the House, should be higher.
Former Subukia MP Koigi Wamwere refers to ‘admissibility and authenticity’ checks conducted before a document is tabled, but says there is need to improve on this.
While the appearance of a date and signature on a document may see it pass the admissibility test, Koigi says one cannot rule out the possibility that these too may be forged.
According to the former legislator, Parliament does not have the adequate capacity to verify documents and requires the input of other departments like security agencies.
"There needs to be a thorough process through which documents are verified before being presented to the House because of the potential adverse effects such documents may have to the credibility of the House and individuals adversely mentioned," says Wamwere.
This, according to Wamwere, would prevent character assassination of persons who cannot defend themselves in Parliament, based on allegations that may sometimes turn out to be unfounded.
Law Society of Kenya Chairman Eric Mutua says it behooves Parliament to sanction MPs who use parliamentary privilege as a blank cheque to engage in mischief.
"No person or institution is above the law. It is possible, for instance, to question an MP on how they came into possession of documents which they present in Parliament," he says.
Ndubi says legislators should take responsibility for documents they present to Parliament because this has a direct bearing on the individual and Parliament’s credibility.
"We need a system that ensures those tabling documents follow due diligence and can show, within set guidelines, that they believe the documents to be authentic," he says. Mars Group Executive Director Mwalimu Mati says the Parliamentary Powers and Privileges Committee should act on any legislator found to have misled the House by presenting fake documents.
"We have seen instances in the past where the Speaker has barred media houses from Parliament for misreporting. We, therefore, expect similar stringent measures taken against any legislator who is found to have misled the House if what they table turns out to have failed the authenticity test," he says.
Mati says there is enough, on paper, to control abuse of parliamentary privilege, but that the bigger question remains on enforcement.
"Parliamentary privilege comes with responsibility and I would for instance expect the Yatta MP to be sanctioned should it turn out that the document he tabled was not genuine," he says. According to Ndubi, members of the House found guilty of engaging in such practices are in breach of Chapter Six of the Constitution.
"Should a document, which has the potential to dent relations between Kenya and another nation fail the authenticity check, then the individual who presents it should be held accountable for not only dishonoring his office but the nation," he says.
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