Parliament’s efforts to force the government to opt out of the Rome Statute and cripple the investigations of the International Criminal Court stalled as reality dawned on MPs on the supremacy of the new Constitution.
Two clauses in the Constitution –article 2(5) and article 2(6)—came in handy in questioning the validity of the motion. The two clauses expressly direct that all ratified conventions and general rules of international law shall form part of the law of Kenya and the Constitution.
The debate on the motion had earlier in the day been delayed, but then when it came up, the legal landmines exploded to the fore as MPs sought a direction from deputy Speaker Farah Maalim on the constitutional validity of the motion.
Though the deputy Speaker did not rule on the question of validity, it was apparent that there was no legal basis to have the motion in the House, at least going by the contribution of Justice minister Mutula Kilonzo and Gichugu MP Martha Karua.
The emotional push to have the debate proceed floundered when Mr Danson Mungatana (Garsen, Narc Kenya) turned the heat on the House Business Committee, the motion’s sponsor Isaac Ruto (Chepalungu, ODM) and the seconder Jeremiah Kioni (Ndaragwa, PNU), seeking to know how they could seek to amend the Constitution through a motion.
“The day we promulgated our Constitution, any treaty that we signed, and ratified, including the Rome Statute became part of the Constitution. We cannot amend the substantive law of this country through a motion of this nature. This is a wrong procedure. The House cannot be allowed to engage in a matter that is contrary to the Constitution we want to uphold,” said Mr Mungatana.
The Justice Minister said the issue had to be handled “very carefully” saying that the Rome Statute was adopted “not long ago” by the same MPs when they approved the International Crimes Act back in 2008.
The minister together with Dr Boni Khalwale (Ikolomani, New Ford Kenya) reminded MPs that the statute was the First Schedule of the Act, and thus it was wrong to try to amend it through a motion.
“You cannot approach it by a way of a motion,” the Justice Minister told agitated MPs.
“I understand the reasons for this, the emotions, the fears and doubts. But I have been in this country and was in this House when we were denied opportunity to put in place a local mechanism… That does not mean as a lawyer that I retreat into emotion. I refuse to act in fear. I want to be guided by principles,” said the Justice Minister.
“In order for this motion, to even see the light of day, we must find a way of excepting (sic) the Rome Statute from article 2(6) of the Constitution.”
The minister reminded MPs that though former president Moi signed the motion committing Kenya to the ICC in August 1999, it was President Kibaki “the reformer” who ratified the statute on March 15, 2005. He said it is the former Foreign Affairs Minister Chirau Ali Mwakwere (now Trade Minister) who put pen to paper to commit Kenya on the matter.
“Of course, you can unsign, but I will show you the right way, so that you don’t drag this country down like a rug,” he said.
At this point the MPs heckled the Justice Minister, shouting “so what”, while others told him to sit down, but Mr Kilonzo, looked the deputy Speaker in the eye and said: “This motion should never have gotten your approval, because it violates the Constitution.”
When she rose to contribute, Ms Karua (Gichugu, Narc Kenya) noted the hostility of the MPs but added: “I don’t have to contribute on the basis of popularity of what I say, but on the conviction of what I believe the law says”.
She told MPs who had flashed the supremacy card of the Legislature as having the powers to make and unmake laws, that the procedure has to be followed.
“Let’s be people who follow the rules that we make,” said Ms Karua. “If Hague is seen as a misfortune, let’s know that we are the authors of this motion. Let’s remember that we asked for the Hague believing it was a dream, but it is here.”
Ms Karua said the MPs had to act based on principle.
“Due process is not a process of condemnation. If you’re innocent you’ll be cleared,” she said.
She noted that if the trend went on and some of the top leaders were mentioned in the High Court, then perhaps MPs will push for the dissolution of the country’s criminal judicial system.
Ms Karua told MPs that this was the time to reform the Judiciary, because there were “many other victims who’ll not be served by the ICC” who still need justice.
Ms Rachel Shebesh (nominated, ODM) added: “The people want justice, (and that’s) the system of justice which we put in place as MPs when we said, let’s not be vague, let’s go to the Hague.”
Mr Gitobu Imanyara (Imenti Central, CCU) also noted that as per the House rules, the matter was active in the ICC and thus any substantive discussion on it will be sub judice.
But when he moved the motion, Mr Isaac Ruto, attacked the ICC prosecutor Luis Moreno-Ocampo terming him as a person “drunk with power”.
“Kenyans might have, in their wisdom two years ago pushed for the ICC to handle the matter, but in recent past, there has been evidence in the public that the ICC prosecutor has been going about his business in not so a normal way…he accused people in a press conference,” said Mr Ruto. “All issues that are pending can actually be addressed through a judicial process in this country.”
Mr Kioni added: “We’ve heard our problems, but why we fought for independence, is because our forefathers believed that we have the capacity to solve our own problems. Where we are now is not where we were two or three years ago.”
“He (Ocampo) said that within one year, he’ll be done with us, we wish him well,” the Ndaragwa MP added. “Withdrawing from the ICC has no issue of cowardice it’s a matter of being sovereign…Our Constitution is so much better.”
Nairobi Metropolitan Minister Robinson Githae also pushed for the motion to be debated.
“Parliament is supreme, it has power to make law, it has powers to unmake laws,” he said. “The purpose of this motion is to allow the government to do exactly that. We’re not a banana republic; we’re not a failed state.”
“We thought that Ocampo is a fair man, to our regret we’ve discovered that Mr Ocampo is more political than a Kenyan politician, and the ICC is more like a Kangaroo court” Mr Githae added.