Parliament’s resolution to force the government to pull Kenya out of the Rome Statute is the first step in shielding the Ocampo Six.
The passing of the motion effectively means Prof George Saitoti or Attorney-General Amos Wako are obligated to table a Bill in Parliament to repeal the International Crimes Act.
If they don’t, then, they could face sanctions from Parliament for failing to obey a resolution of the House.
The near-unanimous support also means that the Executive, led by the two principals, President Kibaki and Prime Minister Raila Odinga, will have to write to the United Nations Secretary-General Ban Ki-moon to notify him of Kenya’s withdrawal from the Rome Statute.
According to Article 127 of the Rome Statute, which is attached on the International Crimes Act as a schedule, the withdrawal “shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date”.
Dr Florence Jaoko, the chair of Kenya National Commission on Human Rights, said the MPs’ move was just “an exercise in futility” to make Kenya “an embarrassed state”.
She added that, in effect, Parliament was telling the international community that “Kenya is not serious” about fighting impunity, making it a prime candidate for The Hague.
Under Article 17 of the Rome Statute on admissibility of cases to the ICC and Article 127 on withdrawal, the six suspects are the key losers as far as the process is concerned.
If the government withdraws, it will have shown its unwillingness to cooperate with the court. That, lawyers argue, is sufficient to have ICC prosecutor Luis Moreno-Ocampo to replace his request for summonses to appear with a request for arrest warrants
“At any time after the initiation of an investigation, the Pre-Trial Chamber shall, on the application of the Prosecutor, issue a warrant of arrest of a person if the arrest of the person appears necessary to ensure the person’s appearance at trial,” reads Article 58 of the Rome Statute.
This means that if the government pushes for a withdrawal, then it will be going the Sudan way of refusing to cooperate with the court on the arrest of suspects.
“Parliament’s action denies the ICC the political goodwill (it had) to arrest suspects and surrender them to the court,” said Mr Cyprian Nyamwamu of the National Convention Executive Council.
He termed the insistence by Vice President Kalonzo Musyoka that the amended motion to pull Kenya out of the ICC “was government business” as a confirmation that the State was behind Mr Isaac Ruto’s move to shield the suspects from any prosecution.
“The legal policy is that they (President Kibaki and Prime Minister Raila Odinga) do not want to prosecute anybody (in authority) at all in relation to the post-election violence,” said Mr Nyamwamu.
This buttresses the warning by Justice Minister Mutula Kilonzo to MPs that “the suspects will be picked up like chicken” if Kenya opted out of the ICC treaty.
And with the masterminds going free, the victims languishing in the camps for internally displaced will feel that justice was not rendered.
However, even if Kenya pulled out, Article 2(4) of the new Constitution gives the ICC leeway to arrest the suspects under customary international law.
And even so, because the cases were filed while Kenya was under obligation to obey the Rome Statute, then the six suspects --politicians Uhuru Kenyatta, Henry Kosgey and Wiliam Ruto and civil servants Francis Muthaura and Hussein Ali and journalist Joshua arap Sang--have no option but to wait for their date with the court.
Mr Moreno-Ocampo named the six, saying he believed they were masterminds of the 2007/8 post-election violence that left 1,133 people dead and 650,000 others displaced.
Kenya politicians have criticised Mr Moreno-Ocampo accusing him of carrying out politically motivated investigations. The prosecutor has dismissed the allegation as false.
In his application to the Pre-Trial Chamber II, the prosecutor has presented two cases one targeting PNU and the other ODM.
He also categories Mr Muthaura and Mr Ali as having acted as PNU agents in their alleged perpetration of violence despite, their office being non-political.