They also want the Court to stop the government from cooperation with the ICC any further and declare that the International Crimes Act 2008 is unconstitutional/FILE
Ken Bartai and Felix Kiprono filed the application on Thursday under a certificate of urgency, arguing that Kenya must stop cooperating with the ICC because the Court has been violating the country’s sovereignty.
The two further want the High Court to issue orders compelling Foreign Affairs Principal Secretary, Karanja Kibicho, from giving the Head of State the green light to leave the country for the Dutch based Court.
They also argue that the ICC violates the accused’s right to life, security and protection of law and that the International Crimes Act 2008 must be declared unconstitutional.
An application is pending before the ICC Appeals Chamber for the president to be allowed to attend his trial via a video link. The appeal was lodged by Kenyatta’s defence team.
On Wednesday, Foreign Secretary Amina Mohamed said the government is awaiting the court’s decision on the matter.
“There is a request that has been put before the court for the president to be allowed to attend some of the sessions via video link. We are still waiting for a decision to be made on that,” she said on Wednesday.
She added that Presidents were normally not tried in Court before their terms end.
Kenya has already warned that future cooperation with the ICC is in jeopardy after Kenyatta was forced to pull out of the United Nations General Assembly because his deputy William Ruto was away in The Hague attending the trial.
The Kenyan constitution bars the President and Deputy President from being out of the country at the same time.
“In countries that are considered more advanced than ours, it is clear that presidents are not hauled before the courts and that in many cases, the courts have to wait for their day after the president leaves office,” she added.
The application by Bartai and Kiprono will be argued on Friday morning.
A similar application had been filed by the National Conservative Forum, in which the lobby group wanted Kenyatta and Ruto barred from attending their trials until they finished their term to avoid a leadership vacuum.
Judge Mumbi Ngugi will make the ruling on the previous application on October 16.
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