Plot to ditch the ICC hits a snag

December 16, 2010 12:00 am

, NAIROBI, Kenya Dec 17- The Speaker of the National Assembly is expected to rule on the legality of a Motion that seeks to have Kenya revokes its affirmation from the Rome Statute.

The ruling has been necessitated after divisions emerged during Thursday morning’s special sitting of Parliament, where MPs challenged the legality of Chepalungu MP Isaac Ruto’s Motion to repeal the Rome Statute which establishes the International Criminal Court.

"We have a new constitution that can deal with Post Election Violence.  There is evidence that Ocampo is prosecuting people without their right to answer," Mr Ruto said in initiating the Motion.

Mr Ruto and his Ndaragwa counterpart Jeremiah Kioni had just asked the House, to repeal the law saying that Kenya was capable of dealing with Post Election Violence cases.

But Garsen MP Danson Mungatana supported by Justice and Constitutional Affairs Minister Mutula Kilonzo led a section of MPs in asking for the Speaker’s ruling arguing that the motion was unconstitutional since all the treaties Kenya has signed including the Rome Statute are now part of the Constitution.

The group challenging the legality of the Motion quoted the Article 2(5) of the new constitution which touches on the adoption of international treaties to become the law of Kenya.

They also said that Mr Ruto’s application bordered on the supremacy of the constitution as outlined under section 254 which allows any amendments in the constitution to be done through a referendum.

Section 2(6) reads: "Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution."

Mr Mungatana: "All the treaties we have signed including the Rome Statute formed part of our laws therefore we must follow the procedures provided to amend the constitution to remove us from any treaty recognised by the law."

Mr Mutula on his part further cautioned Parliament to approach the matter very carefully.

"Two wrongs don’t make a right… I understand the reasons for the Motion and the emotions in the country, but ICC is part of our laws," he said

Imenti Central MP Gitobu Imanyara’s attempt to have the motion dismissed because it would prejudicial to the ICC process was ignored by MPs the Deputy Speaker Farah Maalim who chaired the special sitting, who instead allowed contributions to go on.

"We cannot debate this Motion because this matter is before the ICC and house recognises the ICC," Mr Imanyara told the MPs.

Gichugu MP and Former Constitutional Affairs Minister Martha Karua reminded the house that they were to blame since they failed to form a local tribunal before the post election cases were referred to the ICC.

Ms Karua said:" If The Hague is seen as a misfortune, we MPs are the authors of that misfortune. We all thought that The Hague was a dream, little did we know but now it’s here."

She added, "What this Motion means is that if am charged at the Magistrates or High Court then we should abolish the court through this House?

Nairobi Metropolitan Development Minister Robinson Githae drew laughter from the members after he said they were misled into thinking that the ICC would be a fair process.

"We have discovered that ICC is a kangaroo court.  Ocampo is more political than a Kenyan politician," he said.

According to Article 127 of the Rome Statute a state party can withdraw from the Statute, which created ICC, by writing a notification addressed to the UN Secretary General.

Such withdrawal can only be effective after one year from the date of receipt but even then, investigations by the Court which commenced before the withdrawal cannot be affected.

Deputy Prime Minister Uhuru Kenyatta, who is one of the six suspects named by Mr Luis Moreno-Ocampo, received a thunderous applause from fellow lawmakers when he entered the chamber.


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