A Mombasa businessman has moved to court seeking to stop the International Criminal Court (ICC) from investigating and prosecuting any Kenyan over the post election violence.
Mr Joseph Gathungu, who has filed a constitutional reference before the High Court, says that the new Constitution does not authorise the ICC to probe the chaos that erupted following the disputed 2007 elections.
The businessman, who has also sued the Attorney General, wants the High Court to declare that ICC should be ordered not to involve itself in the investigations and that it should not prosecute any Kenyan at The Hague on account of acts and omissions resulting from the post election violence.
The suit comes just days after Justice minister Mutula Kilonzo told the ICC to keep off Kenya, saying that the new laws would strengthen the judiciary and police to deal with the chaos that left 1,133 people dead and more than 600,000 uprooted from their homes.
Mr Kilonzo, whose docket is crucial for ensuring justice to post election violence victims, argued that the new Constitutional order will ensure strong structures to punish violence culprits. His comments came after the government allowed the ICC to set up base in Kenya to carry out its investigations.
However, ICC chief prosecutor Luis Moreno-Ocampo has said he will seek to institute two cases involving up to six individuals before the end of the year.
A statement from the ICC headquarters said that the window for Kenya to block investigations and trial was closed after the Pre-Trial Chamber gave the ICC prosecutor the go-ahead to investigate the case.
But in his application, Mr Gathungu who is represented by Mr Gikandi Ngibuini, wants the court to issue an order that will see all investigations carried out by the relevant organs of the government.
“The ICC is not provided for in the Constitution as an organ capable of either investigating any crimes occurring in Kenya or for that matter hear and determine the guilt or otherwise of any such alleged criminals,” he says in the application.
In addition, the applicant says that the Constitution being the supreme law of the land does not recognise ICC as a competent court in Kenya, and therefore to allow it to operate amounts to the surrender of sovereignty of Kenya to foreigners which is untenable.
He says that ICC is neither a court nor a tribunal that has been established by or under the Constitution promulgated on August 27, 2010, and it was therefore necessary to establish it as local tribunal, so as to legally operate in Kenya.
“I, like so many other Kenyans, share the view that we need to take charge of our own affairs and determine the destiny of this country, free from any outside interference,” he says.
The case will be heard in the afternoon before Justice Mohammed Ibrahim.