Hague Convention of 1899

The peace conference was proposed on August 29, 1898 by Russian Tsar Nicholas II.^[3] Nicholas and Count Mikhail Nikolayevich Muravyov, his foreign minister, were instrumental in initiating the conference. It was held from May 18, 1899 and signed on July 29 of that year, and entered into force on September 4, 1900. The Hague Convention of 1899 consisted of four main sections and three additional declarations (the final main section is for some reason identical to the first additional declaration):

• I: Pacific Settlement of International Disputes
• II: Laws and Customs of War on Land
• III: Adaptation to Maritime Warfare of Principles of Geneva Convention of 1864
• IV: Prohibiting Launching of Projectiles and Explosives from Balloons
• Declaration I: On the Launching of Projectiles and Explosives from Balloons
• Declaration II: On the Use of Projectiles the Object of Which is the Diffusion of Asphyxiating or Deleterious Gases
• Declaration III: On the Use of Bullets Which Expand or Flatten Easily in the Human Body

The main effect of the Convention was to ban the use of certain types of modern technology in war: bombing from the air, chemical warfare, and hollow point bullets. The Convention also set up the Permanent Court of Arbitration.

[edit]Hague Convention of 1907

The second conference, in 1907, was generally a failure, with few major decisions. However, the meeting of major powers did prefigure later 20th-century attempts at international cooperation.

The second conference was called at the suggestion of President Theodore Roosevelt in 1904, but postponed because of the war between Russia and Japan. The Second Peace Conference was held from June 15 to October 18, 1907, to expand upon the original Hague Convention, modifying some parts and adding others, with an increased focus on naval warfare. The British tried to secure limitation of armaments, but were defeated by the other powers, led by Germany, which feared a British attempt to stop the growth of the German fleet. Germany also rejected proposals for compulsory arbitration. However, the conference did enlarge the machinery for voluntary arbitration, and established conventions regulating the collection of debts, rules of war, and the rights and obligations of neutrals.

The Final Agreement was signed on October 18, 1907, and entered into force on January 26, 1910. It consisted of thirteen sections, of which twelve were ratified and entered into force:

• I: The Pacific Settlement of International Disputes
• II: The Limitation of Employment of Force for Recovery of Contract Debts
• III: The Opening of Hostilities
• IV: The Laws and Customs of War on Land
  • includes the Annex on The Qualifications of Belligerents, Chapter II: Prisoners of War
• V: The Rights and Duties of Neutral Powers and Persons in Case of War on Land
• VI: The Status of Enemy Merchant Ships at the Outbreak of Hostilities
• VII: The Conversion of Merchant Ships into War-Ships
• VIII: The Laying of Automatic Submarine Contact Mines
• IX: Bombardment by Naval Forces in Time of War
• X: Adaptation to Maritime War of the Principles of the Geneva Convention
• XI: Certain Restrictions with Regard to the Exercise of the Right of Capture in Naval War
• XII: The Creation of an International Prize Court [Not Ratified]^[4]
• XIII: The Rights and Duties of Neutral Powers in Naval War

Two declarations were signed as well:

• Declaration I: extending Declaration II from the 1899 Conference to other types of aircraft^[5]
• Declaration II: on the obligatory arbitration

The Brazilian delegation was led by the statesman Ruy Barbosa, whose contribution was essential for the defense of the principle of legal equality of nations.^[6] The British delegation included the 11th Lord Reay (Donald James Mackay), Sir Ernest Satow and Eyre Crowe. The Russian delegation was led by Fyodor Martens.The Uruguayan delegation was led by José Batlle y Ordóñez, great defender of the compulsory arbitration by creating the idea of an International Court of Arbitration, and an alliance of nations to force the arbitration.

[edit]Geneva Protocol to Hague Convention

Though not negotiated in The Hague, the Geneva Protocol to the Hague Convention is considered an addition to the Convention. Signed on June 17, 1925 and entering into force on February 8, 1928, it permanently bans the use of all forms of chemical and biological warfare in its single section, entitled Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare. The protocol grew out of the increasing public outcry against chemical warfare following the use of mustard gas and similar agents in World War I, and fears that chemical and biological warfare could lead to horrific consequences in any future war. The protocol has since been augmented by the Biological Weapons Convention (1972) and the Chemical Weapons Convention (1993).

Why the Hague is Kenya's Better Option

The Kenyan parliament has voted to send perpetrators of the 2007 post-election violence to the International Criminal Court in The Hague.

The constitution amendment bill intended to create a local tribunal required two thirds majority to pass but it failed. This is in spite of the presence in parliament of the two principals in the Grand Coalition government, President Mwai Kibaki and Prime Minister Raila Odinga.

First, this was a slap on the face of the leadership of the Grand Coalition government. MPs are saying that they can have their way even when that goes against their party leaders. This assertion by parliament is a major contrast from other past parliaments, especially under Jomo Kenyatta and Daniel Arap Moi. Then, it was near suicidal to contemplate going against the national leadership. Notable victims of this include Martin Shikuku, Chelagat Mutai, George Anyona, Jean Marie Seroney, and many others.

Pre-Trial Judges in a session                                          Courtesy: icc

One can only guess the MPs’ motivation in this action. Chatter among Kenyans suggests many reasons. There are some that hope that The Hague process, given how lengthy it can be, could allow those accused to “escape” the wheels of justice. Others want it for the exact opposite reason: they have no confidence that local institutions can guarantee justice and hence prefer that this justice is dispensed elsewhere; in this case, The Hague.

In the end, it boils to the lack of confidence in local institutions to realize needed justice and tame impunity. This is not an accidental view as confidence in local institutions has been eroding over time as our history demonstrates. The country has seen tribunals, select committees and commissions of inquiry in action, conducting elaborate hearings, and composing meticulous reports complete with reasonable recommendations for action. In almost all cases, recommendations haven’t seen the light of day.

When popular MP for Nyandarua North, JM Kariuki, was murdered back in 1975, parliament moved into action and created a Parliamentary Select Committee to investigate the heinous crime. They held hearings and composed a report with recommendations for investigation and prosecution of key suspects. No action was taken then and, to date, there hasn’t been justice in this atrocity!

As well, throughout the Moi era, we witnessed a number of commissions of inquiry whose recommendations continue to gather dust wherever the reposts are filed. When Foreign Minister, MP for Kisumu Rural, Dr Robert Ouko was killed, the government did what it knows best to do: create an inquiry. This Commission of Inquiry held hearing across the country, amid resistance and lack of cooperation from those in power. Allegations surfaced that the government was wiretapping commissioners’ private conversations. And even before the Inquiry completed hearings, its work was stopped abruptly with then president suggesting that it had enough to write a report.

A report did follow, along with recommendations. As with the JM Select Committee report, government failed to take action. To date, no justice can said to have been done with respect to the murder of Dr Robert Ouko. Indeed, no justice may ever be done in this case as most witnesses have died; some dying under mysterious circumstances. Members of parliament did revisit the Ouko murder during the NARCC administration. They created a Parliamentary Select Committee to examine the matter. It too wrote a report and made recommendations, which have never seen the light of day! There is more.

In the 1990s, following the coming of multiparty democracy, there were politically-engineered ethnic clashes, especially in the Rift Valley and Coast provinces. Thereafter, the president appointed a Commission of Inquiry on land clashes. Justice Akiwumi and his team held hearing, wrote a report and made recommendations. Those too haven’t seen the light of day!

Around the same time the government appeared committed to dealing with matters of land in Kenya. Land is central to many problems in the country, aggravated by the amount of graft and corruption that has bedevilled its acquisition. The rush for land and accompanying mania added a newt term to Kenyan lingo: grabiosis, which describes mania-like intent on grabbing anything (especially land) that can be reached, be it legal or otherwise.

Ndung’u report was the result of this exercise. The report was said to be so explosive it wasn’t made public. Indeed, some key politicians went to court to challenge its publication. In the last election there was debate on the merits and demerits of implementing the report with Orange Democratic Party (ODM) committing to implementing it! That report’s recommendations remain only that: recommendations; they too may never see the light of day!

In 2002 Kenyans elected a government that promised to deal with corruption and “put the country to work”. President Kibaki in his inaugural address promised to create a working nation in which Kenyans earned what they had worked for. Corruption will be targeted and dealt with. He even appointed an Ethnic Czar, John Githongo!

As well, the president created a Commission of Inquiry, under Justice Bosire, to tackle the matter of Goldenberg, perhaps the biggest corruption in the country at the time. As usual, hearings proceeded and a report with recommendations was made! That too has not seen the light of day! (A similar fate befell recommendations on Truth, Justice and Reconciliation!)

Worse still, the NARC regime fell out with its Ethics Czar who had to reign in a huff while on a visit overseas! This demonstrated the lack of willing to tackle corruption by the regime. And corruption, and grand corruption at that, continues to grow by leaps and bounds!

Perhaps the greatest demonstration of lack of confidence in national institutions (especially the judiciary) happened following the debacle of the last presidential elections. The aggrieved party, ODM, refused to go to court claiming that the system was stacked by President Kibaki’s cronies! This action possibly worsened the degree of clashes that followed the debacle.

It is ironic that many that expressed lack of confidence in the Kenyan judiciary now favour a local tribunal rather than The Hague. The Hague issue may never have arisen had the governments (under Kenyatta, Moi and Kibaki) addressed issues in a timely manner. For example, it is possible that post-election clashes of 2008 could have been averted has

the government implemented both the Akiwumi and Ndungu reports. It is also possible that had government record been stellar with respect to previous recommendations, MPs would have voted for creation of a local tribunal.

I am not proud that my country will be subjected to The Hague process! It makes us look like banana republic, the equivalent of a failed state whose business becomes everyone’s business! All being the result of failing to put our house in order! Unfortunate as it may seem, many Kenyans empathize with the outcome of the vote. For one, we have tried the local route before with no results. The number of commissions of inquiry and lack of follow up has eroded confidence in our ability to carry through with respect to matters of justice. The vote simply says that Kenyans have been down this path before; they have seen the “movie” and it is silly to attempt the same thing all over again, knowing well the possible outcome. 

Conclusion: Kenyans want to try something else. In Ekegusii we say: gakiaborire ‘nchera maate kerigerie ‘nchera rogoro - literary translated: when you are looking for something and you cannot find it on one side of the road, try the other side! Kenyans are trying the “other side of the road”, the Hague alternative; and it may be due to exasperation with local institutions!

The Hague may not bring ultimate justice as desirable. Given it is lengthy it is not likely to be timely in action. And we know that justice delayed is justice denied!

WHAT WE ARE NOT SAYING ABOUT SELF-REWARD BY MPs

By Oduor Ongwen

A lot has been written and said about the recent hefty pay, allowances and other perks that our legislators awarded themselves. In my view, the salary increases and the Sh. 3.3 million- car ‘grant’ are just the ears of a hippopotamus (or tip of the iceberg, for those socialized in the Western tradition). The real heart of the matter is in the blank cheque they have given themselves in the guise of promoting ‘independence’ of the house, the pensions (not the retired president’s), the mortgage scheme (at 3% p.a when mortal Kenyans are repaying theirs at 22%!) and the Sh. 10 million medical insurance.

On 4th November 1998, the then MP for Alego/Usonga, Hon. Peter Oloo Aringo, moved a motion that:
“In order to promote and consolidate the dignity, independence and supremacy of Parliament, this House urges the government to take immediate steps, including the introduction of any necessary constitutional amendments, to establish a Parliamentary Service Commission which shall be directly responsible to the National Assembly.”

The basis for this motion, and subsequent constitutional amendment, was that there was need to strengthen and capacitate the Parliament so that it may regain the independence necessary for the purposes of directing, organizing, conducting and implementing its activities, free from the control and manipulation by the Executive. Among the specific objectives of the motion were:

• To improve and strengthen the roles played by various committees of the Parliament;
• To institutionalize parliamentary independence and to enable it to develop a sustainable organizational structure; and
• Catalyze the envisioning of an agenda for Parliament in the New millennium

Consequent to that motion, which was endorsed unanimously, a Bill to amend section 45 of the Constitution was brought before the House and unanimously passed. It became law and commenced on 19th November 1999, after receiving presidential assent on 17th November 1999.

This constitutional amendment repealed previous section 45 of the Constitution, which had created the office of the Clerk to the National Assembly, making it an office in the public service. Instead, it enacted a new part 1A (Sections 45A and 45B) establishing the Parliamentary Service and a Parliamentary Service Commission – distinct from the Public Service Commission and Judicial Service Commission.

Creation of Parliamentary Service Commission (PSC) and its powers
It provides that the new Parliamentary Service shall be headed by the Clerk to the National Assembly and staffed by such other officers as may be appointed by the Parliamentary Service Commission (hereinafter referred to as PSC). It further provides for the expenditure of the National Assembly to be charged on the Consolidated Fund.

Section 45B(5) outlines the powers of the PSC as below:

(i)    To constitute and abolish offices in the Parliamentary service

(ii)    To hire, fire, discipline and provide for terms and conditions of service of employees of the PSC.

(iii)    To provide the National Assembly with the services and facilities it needs for efficient and effective functioning.

(iv)    To exercise budgetary control over the PSC, and supervisory control over the administration, services and facilities it provides.

(v)    To catalyze the preparation and presentation, before the National Assembly, of annual expenditure estimates (i.e. budget) of the Parliamentary Service for the upcoming financial year.

(vi)    To facilitate the preparation and presentation before the National Assembly of annual audit reports of the PSC, to be known as “the accounts of the Clerk of the National Assembly.”

(vii)    To provide security staff for both the members and the precincts (its services and facilities) of the National Assembly.

(viii)    To periodically appoint an independent body to review and make recommendations on the salaries and allowances of members of the Assembly.

(ix)    To initiate, coordinate and harmonise policies and strategies relating to the development of the PSC.

(x)    To undertake, singly or jointly with other relevant authorities and organisations, such programmes as will promote the ideals of parliamentary democracy in Kenya.

(xi)    To do such other things, including review of powers and privileges as may be necessary for the well-being of the members and staff of the National assembly and to exercise such other functions as may be prescribed by or under an Act of Parliament.
Checks and balances strategically removed from Constitution
It is instructive to note that the tribunal (now famously known as the Cockar Tribunal) that recommended the recent salary and allowance hikes was established in accordance with Section 45B(5)(b) of the Constitution. It should also be noted that the Amendment Act disables sections 48 and 107(1) of the Constitution.

The purpose of Section 48 of the Constitution, which requires presidential recommendation, signified by a Minister before the National Assembly proceeds upon a Bill or motion (or amendment thereto) that imposes or alters taxation; imposes or alters a charge to the consolidated Fund or any other government fund; provides for the payment, issue or withdrawal from the Consolidated Fund … among others, was to create checks and balances on the spending powers of parliament. It was the office of the President that acted as the institutional check. Since the President himself was a member and leader of one of the parties, indeed the ruling party, there were justified fears that he could use this to strangulate or manipulate Parliament. However, this check was removed without institutional replacement. The only checks and balances that our legislators appear to understand is the size of salary check and their bank balances. It has, thus, created a situation where the Parliament has spending powers outside any institutional checks. This has led to a  mischievous situation where the temptation by honourable members to dip their hands into the public till for self-gain has become irresistible.

Salaries and Allowances illegally altered by MPs to facilitate looting
In August 2000, the Members of the National Assembly, in flagrant violation of the law, covertly and hastily increased one of their allowances almost three-fold from a maximum of KSh. 118,000 to a uniform KSh. 336,000 per month. They in the same stroke altered how they qualified for this allowance from being mileage based to flat rate. This means that the MP for Starehe in whose constituency parliament buildings stand earn the same transport allowance as an MP from Moyale. Below are the current earnings of various categories of parliamentarians:

OFFICER	SALARY	SITTING*	CONSTI TUENCY	TRANS PORT	ACCOMO DATION	RESPON SIBILITY	TOTAL
SPEAKER	10,000	48,000	5,200	336,000	50,000	16,200	465,000
DEPUTY SPEAKER	10,000	48,000	5,200	336,000	45,000	9,000	453,000
VICE PRESIDENT	10,000	48,000	5,200	336,000	66,666.65	16,500	482,366.65
MINISTER	10,000	48,000	5,200	336,000	50,000	10,870	462,070
ASSISTANT MINISTER	10,000	48,000	5,2000	336,000	41,666.65	8,000	448,868
MEMBER OF PARLIAMENT	10,000	48,000	5,2000	336,000	33,333.30	7,500	440,033.30

The bottom line: MPs wanted to increase their pay
A sitting allowance of KSh. 3,000/= was retained. As the assembly sits four times in a week (One sitting each on Tuesdays and Thursdays and two sittings on Wednesdays), a diligent member would earn KSh. 12,000/= per week translating to KSh 48,000 per month. Every time a Standing or ad-hoc Committee meets, the participating MPs earn a sitting allowance; every time they travel, ostensibly on national business e.g. recent tour of Asia and Europe by members of the Energy Committee, they earn; any time they work when parliament is not in session or over-time, they earn.

The bottom line was that the goal of the MPs was to increase their pay. Calling it transport allowance was nothing but a poorly thought-out smokescreen. As a firm believer in the building and nurturing of strong and independent democratic institutions, the Council believes in adequate remuneration for members of parliament to keep them from temptation of corruption and absconding from their principal duties in search of kiosks to run. The most dishonourable thing done by the honourable members was to resort to a subterranean approach. Had the matter been debated in the open House, so that all Kenyans could discuss it in other forums, a measure of honour, which our parliamentarians richly deserve, would have been retained. This, however, had all the trappings of a “backroom deal”, brokered between PSC and the Treasury with little official information filtering out, save for well-spinned press releases with scanty details. Being backroom deals not discussed on the floor of the House, the matter was not reported in the Hansard, from where researchers and members of the public could be able to analyze it. In the same stroke the MPs also doubled the cost of their duty-free vehicles to KSh. 2 million.

Fraudulent Pension Framework and private Insurance Cover
On 31st December 1999, the President assented to Parliamentary Pensions (Amendment) Act, No.9 of 1999 amending the Parliamentary Pensions Act   (Cap 196). It was backdated to 1st July 1994 as its commencement date. The amendment Act achieved the following:

•  Raised the rate of accumulation of interest on contributions from 3% to 15%

•  Raised the percentage of the sum deductible from payments of pensionable emoluments from 5% to 12.6%

• Doubled the amount payable annually as pension from one six-hundredth of the Members’ pensionable emoluments for each completed month of the aggregate period of reckonable service.

• Whereas before a member entitled to pension was entitled to commute up to one-quarter of his/her annual pension at an equivalent of twelve-and-a-half times the amount commuted, now a member can commute up to 15 times that amount. Prior to this amendment’s enactment, the option of commuting had to be exercised on or before retirement day; and if thereafter, only once and with the approval of the Management Committee (Comprising the Speaker and Clerk of the National Assembly; the Attorney General and the Permanent Secretary to the Treasury or their representatives; the Accounts Controller of the Treasury and 3 members of the National Assembly).

• By deleting and replacing provisions, Members can now potentially commute it infinite times, at any time before or after retirement and need not obtain the Committee’s or any approval.

•  While one had to have ceased completely being a member of the National Assembly, served for an aggregate of ten years and aged at least 50 years of age to draw a pension previously, this is no longer a prerequisite. In effect, one can draw a pension after attaining 40 years and serving a single term in Parliament; whether or not s/he is serving a second or subsequent term.

• In the previous arrangement, the Management Committee solely appointed actuaries for the purposes of the Act. Now the Committee makes, as a token, such appointments “on recommendation of the Treasury.” If it is noted that the role of actuary is to review once every 10 years or as the President may direct - the relationship between contributions made and benefits paid out to ensure that contributions made approximate one-third of the benefits paid out. Under the Amendment act, the Management Committee may now direct (“make recommendations”) to the actuary “for the better carrying out of the objects of the Act.” This, in our considered view, amounts to “recommending to the “auditor” how to audit you.

• Section 13(3) of the act provided that a widow who was entitled to her late husband’s pension (under this Act) loses it if, and for as long as, she remarries. Section 13(6) previously provided for the same disentitlement for a widower of a pensionable woman member with the words “… and that pension may be terminated on the direction of the Committee in the event of his remarriage.” These words have now been struck off, without deletion to similar provisions to section 13(3). The possible effects of this is that widowers of women Members may now keep their entitlements despite remarrying while widows of male Members lose theirs! Another case where the august House, which is supposed to be the archetype of justice, is manifestly encouraging, and practicing, the discrimination against women.

At around the same time, members of parliament negotiated, through the PSC, a lucrative insurance cover with the Insurance Company of East Africa (ICEA). Information available reveal that this was a purely private contract between persons capable of being insured as a group i.e. parliamentarians and an insurer. Further the premiums are deducted from the MPs’ salaries through a check-off system. As such, this cover is not financed from the public coffers (the Exchequer). It is therefore, not objectionable. Indeed, with the increasingly violent nature of Kenya’s politics, it is highly recommendable.

How Kenyan MPs are looting the economy

On Thursday, 6^th March 2003, Kenyan MPs passed a motion in Parliament raising their basic salaries and other allowances, a move that continue to be opposed by all Kenyans who are concerned at the outright theft of public funds by individuals who are supposed to control spending of State funds in the public interest. What was more annoying was that the bill in Parliament increasing the 222 MPs pay was the first item the MPs tackled after the new government was elected on a “popular wave” to correct the wrongs of the former dictatorship of Daniel arap Moi. Worse still, the huge perks came at a time when Kenya’s budget deficit stood at Ksh 65 billion and as the new government engaged the IMF and World Bank to release aid totalling to Ksh 300 billion. The following is a summary of how Kenyan MPs are looting the country’s economy. As MPs make their contributions in shattering the economy, the ruling Narc government is telling Kenyans that it is trying to turn the economy around by creative a conducive environment where foreign investors can bring business that will make the economy to thrive.

1. Basic salary: Ksh 495,000, up from Ksh 395,000.

2. Monthly housing allowance: Ksh 70,000. Every MP is also entitled to a Ksh 8 million for the purchase of a residential house. The argument is that an MP ia a very important person representing thousand of people in Parliament and should therefore live in a decent house.

3. Car grant: Ksh 3.3 million.

4. Monthly car allowance: Ksh 75,000. This is to fuel the car and help with running expenses.

5. Winding up allowance: Ksh 300,000. This is money given to every MP to “round off the year” after every year. For the five years an MP sits in Parliament, he/she scoops a clean Ksh 1.5 million from the tax payer.

6. Monthly entertainment allowance: Ksh 60,000. This money is to enable MPs entertain guests by buying them food, drinks, and other luxuries as he goes cruising around the country “in the interest of constituents”.   

7. Monthly extraneous allowance: Ksh 30,000. This money is to enable the MP  take care of “unexpected expenses” in the line of duty.

8. Sitting allowance: Ksh 3,000 per sitting. The assembly sits four times a week and this brings the amount to Ksh 12,000 a month or Ksh 48,000 per year.

9. Monthly constituency allowance: Ksh 1.6 million. The MPs voted for an annual Constituency allowance of Ksh 20 million which was passed without much opposition. The MP has a free hand in the spending of this money through a hand picked Committee drawn from sycophants and other loyalists trailing his/her convoy.

The President earns Ksh 2 million and has an entertainment allowance of Ksh 200,000. Despite opposition from Kenyans, the salaries and allowances are active today. Every member of Parliament therefore has an opportunity of becoming a millionaire while their constituents have nothing to eat and as workers who pay  taxes the MPs are looting are living on starvation wages. Because of this open theft of public funds, KSDA is calling for a change of the system to that which will remove privileges for Parliamentarians by reducing MP salaries to that of a skilled worker. Politics is not business and there is no justification whatsoever for the hefty salaries and allowances when the President himself has said that the government is broke and when the regime is openly begging money from the West to finance public programs.  

We say: -Reduce MPs salaries to that of a skilled worker -No privileges for sitting MPs. Privileges widens the gap between the rich and the poor while it also corrupts! -Establish a minimum living wage commensurate with the current rate of inflation for all workers in Kenya.  -Stop using taxpayers’ money to finance the lavish lifestyles of politicians. -Abolish capitalism in Kenya, a system built on exploitation of the poor, privileges for the rich and use of Parliament to create millionaire MPs at the expense of the poor!