ICC Process is the only way to Justice

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Kenya may loose focus in the fight against impunity if the cases against Uhuru Kenyatta and William Ruto are deferred back to Africa. I base my arguments on the supreme law that is envisaged by the constitutional provisions of the holders of the office of the president and that of the deputy. During the electioneering period, the so-called west powers cautioned Kenyans about their choice of leaders and the eventual consequences of electing such.

I find the argument of the African Union out of Kenya’s constitutional order and demand that the body desist from engaging in ways that bring distrust to the African democratic space. The constitution of Kenya is clear that despite the ‘reformed’ Judiciary the Victims of the PEV will never get justice as required by the International law.

Under art 143 (1) the constitution is so clear that ‘Criminal proceedings shall not be instituted or continued in any court against the President or a person performing the functions of that office, during their tenure of office.’

And art 143 (4) overrules clause (1) if the matter remains under the jurisdiction of a court created by the international treaty in which Kenya is a signatory. The law is crystal clear that ‘The immunity of the President under this Article shall not extend to a crime for which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity.’

If the articles 143.[1] &[4] are read together, then the African Union lobbying to have the cases deferred back to Nairobi is the greatest laugh our time as it would be the impunity ICC is currently trying to solve.

After the submissions by Deputy President William Ruto during the status conference at the ICC based court leaves one wondering, “Why did he in the first place vie for the deputy presidency?”

Whoever drafted the Rome Statute had a clear picture of the impunity that would come up with the implementation of the Rome statute. Under art 27 of the Rome statute, William Ruto’s submissions were under no grounds of consideration and therefore irrelevant.

Art 27 [1] of the Rome Statute states, ‘This Statute shall apply equally to all persons without any 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.’

If read together with article 143 [4] of the Kenya’s new constitution the law is clear that African Union is trying to use the pre-existing Diety presidential regimes to buy justice for the two Kenyan Nationals facing close to six counts of Humanitarian crime.

Article 27 [2] of the Rome statute states ‘Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.’

I wish to remind Kenyans calling for the dropping of the charges on the grounds that the two suspects are now popularly elected by the majority of Kenyans to refer to art 2[5] of the supreme law of Kenya.

Rome Statute art 27 [2] supplements Kenya constitution article 2 (5) where it states ‘The general rules of international law shall form part of the law of Kenya’, and therefore in regardless of whatever capacity you are law shall always prevail.

Raila Odinga lobbied 10^th parliament to pass the law that could eventually lead to formation of a local tribunal but the ODM rebel MPs led by my former Party president William Ruto opposed to the move. It would be remembered that the now Bomet Governor Isaac Rutto told MPs ‘don’t be Vague lets go to Hague.’

I got to heated debate with a Ugandan Blogger and a friend Emma Tabaro and the subject of implication by the west came up. It’s so unfortunate that many people including Uganda’s President doesn’t know how the cases landed at The Hague based ICC. Like Burundi and Rwanda, Kenya had option of constituting a tribunal through an act of parliament and submits the decision. Kenyan people through their representatives chose to drop the option of the Local tribunal for the ICC.

President Kagame talks of Africa being targeted but forgets that his country after the 1994 genocide the parliament chose the local tribunal into the genocide that had its sittings at Arusha Tanzania. It’s so unfortunate that President Museveni talks of West using ICC to impose Africans puppet presidents but forgets that we are tired of life presidents who commit lots of crimes while in power.

ICC underlined that most of the African cases at the court were referred matters and therefore the court doesn’t target Africans as alleged by uninformed tyrannical presidents of African Union who when other Unions were discussing economic crisis in their continents they spent their time discussing matters touching only 2 individuals where as the 1,300 dead people are seeking revenge from the already pre-existing justice system.

ICC Presidency on May 29 reminded the African Union that only the UN Security Council could defer or refer cases and I wish to remind the African Presidents that to convince all the 5 veto powers to vote in their favour, it like kabuki dance and not as seen to be liberation march.

I am even wondering why the heads of states and governments put the matter in the agenda anyway. During the UN general assembly the matter was received like a shock and even the articulator was ignored by his appointing authority. Watch this space as more may come when the actual judicial process shall begin. I wish to say that as I was opposed to the new constitution on the issue of letting questionable people vie for presidency and later Kenyans voted for it, so shall I abide with the law on the provision on social justice and international law.

I wish to leave the matter with the expert on the international law to discuss but from the 4^th estate view, I find the wastage of public resources by the new regime out of order as they can’t change anything in the status of the three Kenyan nationals facing charges at the International Criminal Court in Hague Netherlands. What’s your take on the same? Tweet me on @starkolix we deliberate