Article 1 of the Constitution states, “All sovereign power belongs to the people of Kenya” and shall be exercised… through the Executive, the Legislature, and the Judiciary. In 2(1), the Constitution is the supreme law. In 2(4), “Any law… that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.”
Even though in 2(5) “the general rules of international law shall form part of the law of Kenya,” 2(6) is categorical that, “Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.” Meaning, such treaties or conventions are not part of the Constitution, and are also null and void if they contradict the Constitution.
Section 7 of the Sixth Schedule is categorical that “All law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution.” Where there is conflict, “with respect to any particular matter... the provisions of this Constitution prevail to the extent of the conflict.”
Article 159(1) states, “Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.”
Articles 162 and 169 establish a legal system made up of the Superior Courts (the Supreme Court, the Court of Appeal and the High Court) and Subordinate Courts (Magistrates courts, the Kadhis’ courts, the Courts Martial, “and any other court or local tribunal as may be established by an Act of Parliament.”)
Both the Rome Statute and the International Crimes Act, 2008, don’t comply with that Constitutional arrangement and are therefore voided and nullified. The Government can only establish courts or tribunals within the judicial system.
There is no room in the Constitution for the jurisdiction of the ICC, which exists and operates outside Kenya’s predetermined constitutional judicial structure and hierarchy.
Worse, by describing itself as the “court of last resort,” the ICC technically supplants the constitutional superiority of the Supreme Court of Kenya.
From the system of courts in the Constitution, crimes committed on Kenyan soil are entirely and exclusively within the judicial power of Kenya.
There is no room for the ICC’s principle of complementarity. The new Constitution practically outlaws complementarity by instituting a fiercely independent judiciary (article 160).
The Rome Statute is invalidated further by other provisions of the new Constitution with which it is in direct conflict. For example, the ICC’s system of courts grossly infringes the constitutional right of suspects in Kenya to a fair trial, yet Article 25(c) is categorical that the “the right to a fair trial” shall not be limited.
A fair trial within Kenya must, among others, be open to appeals up to and including the Supreme Court. A suspect’s rights to a fair trial will be grossly violated if one is transferred from the jurisdiction of Kenyan courts for trial in the judicial system of the ICC, which doesn’t have the appellate sophistication constitutionally available in Kenya.
The right to a fair trial is injured further because the ICC is not just extremely slow; it is punitively expensive for defendants.
Unless the Constitution is amended to expressly accommodate the ICC and remove the Court’s inconsistencies with fundamental constitutional provisions, as it was done in Ireland, the Government is without authority to keep Kenya in the ICC.