Motion to Withdraw Kenya from the ICC is Injudicious
Deputy President William Ruto begins his trial at the International Criminal Court (ICC) in The Hague on September 10th 2013, just a few days after his Jubilee Coalition MPs passed a parliamentary motion to withdraw Kenya from the Rome Statute, which set up the ICC. Some of the reasons for the pull-out include “regaining freedom” and defending the “sovereignty of the nation of Kenya.” The Court is deemed by these MPs as a “neo-colonialist” body that should be consigned to “the cesspool of history.” Another MP claimed that the ICC was modeled to “arm-twist” Africans and “pander” to Western interests. This move has elicited anger among victims of the post-election violence (PEV) which took place in 2007-08. Both Ruto andPresident Uhuru Kenyatta face serious charges of crimes against humanity allegedly linked to the PEV.
Amnesty International strongly criticized the motion to withdraw Kenya from the ICC and its Africa director Netsanet Belay stated that: “This move is just the latest in a series of disturbing initiatives to undermine the work of the ICC in Kenya and across the continent. Essentially, a withdrawal would strip the Kenyan people of one of the most important human-rights protections and potentially allow crimes to be committed with impunity in the future. … This also sets a dangerous precedent for the future of justice in Africa.”
In February 2009, Kenyan MPs voted against a government-sponsored motion to set up a special local tribunal as recommended by the Kriegler Commission, which investigated the PEV. The former Grand Coalition Government did not pursue the PEV perpetrators or resettle all the internally displaced persons (IDPs). Moreover, there was no willingness to establish a domestic tribunal. In an article by the Voice of America (VOA) on January 10th 2011, Director of International Center for Policy and Conflict, Ndungu Wainaina, was quoted saying: “The Kenyan government has never set up a credible and tested witness protection mechanism. Because that is a precondition in terms of being able to carry out successful prosecutions and a fair trial for that matter.”
During the presidential campaigns earlier this year, the ICC narrative was used by Uhuru and Ruto to endear themselves to supporters by contending that Western powers did not want them to lead Kenya. According to Comfort Ero, Africa director for the think tank International Crisis Group, “This ICC indictment against Kenyatta and Ruto has forced them together to, in a sense, use the elections as a referendum against the ICC, accusing the international community of interference in the election process and using the election campaign to mobilize support in their defense.” (Cited in Kira Kay’s ‘Kenya’s Travails’ at stanleyfoundation.org).
Implications of a pull-out
Legal experts feel that if Kenya succeeds in pulling out of the ICC, other African member states may follow suit, thereby defeating the purpose of the Court. Zambian Justice Minister Wynter Kabimba, has supported Kenya’s move and urged other African countries to reject the ICC. He claims that ICC is meant to humiliate African leaders. Uganda has also backed Kenya and the country’s Government spokesperson, Ofwono Opondo was cited in the New Vision newspaper saying: “Kenya voted to join the Rome Statute by themselves and they are free to withdraw.” According to him, there has been no fairness in handling the cases of the accused leaders. “Uganda has made its position clear. Our disappointment is with the way the indictment against the Kenyan leaders was selectively done. Perhaps they wanted to make them withdraw from the race but the Kenyan people stood their ground by voting them in. The withdrawal (from ICC by the Kenyans) is an indictment to the credibility of the ICC,” said Opondo.
The African Union (AU) has accused the ICC of “hunting” Africans because of their race. Out of the countries that have ratified the Rome Statute, 34 are in Africa. The United States is not a member of the Court and there are growing calls by people across the world, to have former president George W. Bush and former British prime minister Tony Blair, charged at the ICC for leading the war on Iraq in 2003. Former British foreign minister the late Robin Cook once said: “If I may say so, this is not a court set up to bring to book prime ministers of the United Kingdom or presidents of the United States.”
In an article titled: “Is The ICC Fit For Purpose?” Dr. David Hoile, a public affairs consultant, analyzed the supposed ICC bias towards Africans. “The Court has courageously gone after only those people it has seen as being weak and unprotected by the UN Security Council. The ICC, for example, has turned a blind eye to self-evident human rights abuses in Iraq, Afghanistan and Gaza. It has instead chosen to indict 27 Africans. And even in five of the African countries the Court has selected for action, it has been politically selective as to which human rights abuses it chooses to pursue. This has made a mockery of the Court’s claims to bring about an end to impunity.” (See newafricanmagazine.com March 01, 2012).
Withdrawing from the ICC will not help Uhuru and Ruto, since the Rome Statute does not recognize an accused person’s political status or station in life. Gabrielle Lynch, Associate Professor, University of Warwick asserts that: “The Rome Statute, which established the ICC, removes the immunity that a serving head of state might otherwise enjoy under national or international law. As Kenya is party to the Rome Statute, even if Kenyatta and Ruto are elected as president and vice president, they will still be subject to the rulings of the court. The ICC’s requirement for defendants to attend hearings at The Hague on a full-time basis would severely impede the ability of an indicted elected official to deploy the duties of their office. In past cases where heads of state or government have been indicted by international courts, they have stepped down from their positions of authority while their trials take place. It is not possible to predict how long the ICC trials of Kenyatta and Ruto will take, but past cases at the court have taken at least three years to complete. There is a significant chance that the trials will still be an issue for Kenya’s general elections in 2018.” (In: Africa/International Law February 2013 – chathamhouse.org).
According to Dr Obote Odora, who is a consultant in International Criminal Law & Policy, legal implications could arise in the future if Kenya withdraws from the ICC. For instance, if the sitting government refuses or has no domestic capacity to deal with transnational crimes such as arms trafficking, human trafficking and terrorism (which may constitute crimes against humanity), where will the victims turn to for help? The motion to withdraw is being promoted by a section of politcians who have nothing to do with other Kenyans who still believe the Court is important. These Members of Parliament are the “Faces of Impunity.”
Jared Odero
Kenya Stockholm Blog 
ICC Withdrawal a Blow to Kenya
Mohammed Yusuf
September 09, 2013
NAIROBI — Kenya’s parliament voted last week to withdraw from the International Criminal Court at The Hague. The move comes as Deputy President William Ruto goes on trial at the ICC for alleged crimes against humanity. Human rights organizations say Kenya’s withdrawal would be a setback to the reforms the country has achieved in terms of fighting political impunity.
Kenyan lawmakers last week voted to pull out of the ICC, where the country’s president and deputy are facing trials for crimes against humanity.
President Uhuru Kenyatta and his deputy Ruto are accused of helping to organize the post-election violence five years ago, in which more than 1,100 people were killed and 600,000 displaced. Both men deny the charges.
Now days after the landmark withdrawal vote in parliament, some Kenyans say they fear the move has tarnished their country’s image
Kenyan political writer and commentator Barrack Muluka told VOA the withdrawal is a big blow to Kenya, not the ICC.
“People in the international community put up the ICC because of something called impunity. And in this impunity it obtains in a individual nation-state and when a certain nation-state decides that it wants to become a rogue state. We cannot say the ICC has suffered a blow, it’s the people of those particular countries that suffer,” said Muluka.
There are still procedural steps for Kenya to take before it can officially withdraw from its ICC obligations – including formal notification to the United Nations. The process could take about a year.
Meanwhile, the ICC says whether Kenya withdraws from the Rome Statute or not, the cases against the president, his deputy and radio host Joshua Sang will continue.
Tiseke Kasambala works with Human Rights Watch. She says Kenyan politicians have sent a very wrong message to their constituents by taking action to withdraw from the ICC.
“This proposed withdrawal from ICC sends the message to Kenyans that what happens to them does not matter. But those who violently torture, and kill them or displace them from their homes would not be brought to account and the Kenyan government doesn’t actually care about them,” said Kasambala.
Initially, President Kenyatta and Ruto pledged to cooperate with the process and defend themselves at The Hague. But that is being increasingly thrown into question.
Human Rights Watch says a pattern of obstruction has developed every time the ICC tries to speed up its proceedings.
On Sunday, Kenyatta warned he and Ruto will not appear unless the ICC changes its scheduled hearings in November and December – as they conflict with Kenya’s celebrations of 50 years of independence.
He also argued he and his deputy are constitutionally prohibited from being out of the country at the same time.
HRW’s Kasambala says Kenya’s obligations to the ICC are still in effect and must be adhered to.
“The ICC is operating separately. Kenya is still a member state and it’s still obliged to follow the ICC obligation on it. So whether this is or not in the Kenyan constitution we are talking about, the fact that Kenya is an ICC member state and therefore has to follow the rules and regulation of the International Criminal Court,” said Kasambala.
This is not Kenyan lawmakers’ first attempt to thwart the ICC. The previous parliament also voted to withdraw from the ICC in 2012. Then-President Mwai Kibaki refused to act on the motion.
Kenya: The Motion for Withdrawal From ICC Was a Mistake
7 September 2013
editorial
Every now and then, editorial writers and op-ed columnists will remind the Kenyan political elite that “when you find yourself in a hole, it’s usually a good idea to stop digging”.
The vote in Parliament on Tuesday, which passed a motion setting the stage for Kenya’s withdrawal from the ICC, was one such occasion.
One of the arguments repeatedly made on the floor of the house, was that the ICC process was an insult to Kenya’s national dignity, and that what was at stake was Kenya’s sovereignty.
Well, politicians can say whatever they want, but there must be many Kenyans who listened to these speeches, and remembered that it was on the floor of Parliament that speeches were made a few years ago, arguing that there could be no question of establishing a local tribunal for suspects of the post-election violence.
And that the good and proper thing to do was to send the cases to The Hague. The greater point here though, is that this is possibly the worst time for the country to signal displeasure with the proceedings at the ICC.
It is true enough that we have our President and his deputy scheduled to undergo possibly the most humiliating experience of their lives in having to answer for crimes against humanity.
Be that as it may, given the point that we have now reached, the only useful thing that those who support the president and his deputy can do – indeed the only thing that would be of use to the nation at all – is to allow Uhuru Kenyatta and William Ruto to proceed to The Hague, and put up a spirited effort to prove their innocence.
Anything else, is not only just a distraction, but worse than that, sends the wrong message to the global community. It cannot fail to reinforce the narrative put out by the political opponents of the President and his deputy that they made their historic run for the top seats, not in order to work for the nation, but as a defense against the charges they would one day have to face at The Hague.
Press releases
5 September 2013
Kenya’s withdrawal from ICC a travesty for justice
Following the Kenyan parliament’s vote to withdraw from the International Criminal Court today, Netsanet Belay, Africa Director at Amnesty International said:
“Today’s vote is a disturbing attempt to deny justice to the hundreds of thousands of people who were driven from their homes or killed in the post election violence in 2007-8.”
“It is unacceptable to try and protect those facing prosecution for alleged crimes against humanity and allow them to evade justice. This also sets a dangerous precedent for the future of justice in Africa.”
The Kenyan parliament’s vote came days before Kenya’s Deputy President William Ruto was due to stand trial in The Hague accused of crimes against humanity after post-election violence rocked the country in 2007-8.
Kenyan President Uhuru Kenyatta also faces serious charges; his trial is due to start on November 12.
AI Index: PRE01/448/2013
The passing of a motion by Jubilee MPs to withdraw Kenya from the ICC is an indication that they want to restore impunity in this country. Ever since the three Kenyans were indicted by the ICC, Kenya has enjoyed peace and tranquility that have never been seen before. This peace is because of the fear of ICC by the lords of impunity in the country. Again, were it not for the fear of ICC, the last General Election could have been chaotic. I would like to call upon Kenyans to reject and condemn efforts by Jubilee MPs to withdraw Kenya from ICC as this is going to bring back dictatorship and impunity.
{JM, Nairobi}
Tribal clashes in Kenya happen all the time yet the Judiciary is unable to act. When the worst kind of this violence happened in 2007/8, everybody was convinced that only the ICC could mete out justice for the majority poor and voiceless. The need for this justice has not gone away merely because Uhuru and Ruto came together and won the elections. The political scene in 2017 might be so different, you would be shocked were you to watch the “fast-forward” clip. We still need the ICC!
{Kariuki Muiri, Karatina}
Withdrawal from ICC will not stop Uhuru, Ruto trial – judge
By FREDERIC MUSISI
Posted Sunday, September 8 2013 at 00:00
KAMPALA
Kenya’s decision to withdraw her membership to the International Criminal Court (ICC) will not stop the trial of President Uhuru Kenyatta and his Deputy Willam Ruto, international Ugandan judge Justice Julia Sebutinde has said.
She added that the decision poses grave challenges for the country and undermines promotion of peace in the region.
Justice Sebutinde, one of the 15-member panel of judges at the International Court of Justice (ICJ), was giving a public lecture on Friday during an event organised by the Ambassador of the Kingdom of the Netherlands Alphons Hennekens in Kampala to mark 100 years of Promotion of Peace through International Law.
“The fact that the Kenyan Parliament, which was voted in by people who suffered the atrocities, decided to pull out of the Rome Statute poses very serious challenges in peace building,” Justice Sebutinde said. “They pull out today but what happens in the near future when the same country is faced with criminals who cannot be tried at a national level?”
She said the decision by the Kenyan Parliament on Thursday to withdraw the country’s membership from the ICC does not nullify an indictment that existed before the withdrawal. “Once criminal proceedings have started they cannot be stopped by such actions. In any case, Mr Kenyatta and his colleague were indicted while not in political office; which isn’t a case for immunity,” Justice Sebutinde said.
The judge cited an example of President Omar Bashir of Sudan who has been indicted by the court yet his country is not a signatory to the 17th July 1998 Rome Statute which created the ICC. “So in that way does it matter whether you are a member of the ICC or not?” she queried. However, she speculated that Kenya President Kenyatta and Deputy President Ruto will, on personal conscience, overlook the hysteria created by Parliament and honour the ICC summons as “law abiding leaders promoting the rule of law”.
Article 127 of the Rome Statute permits Kenya to withdraw from the court after writing to the Secretary-General of the United Nations. The process takes up to a year after writing to the Secretary General.
The Kenyan parliament adopted a motion to “suspend any links, cooperation and assistance” to the ICC. It is the first such action since the ICC was formed. Ambassador Hennekens said “such international courts had helped resolve conflicts for the last century without nations having to take up arms again.”
The ICC Court should Issue a warrant of arrest and detain both Uhuru Kenyatta and William Ruto!Things will begin to change better for the ICC Court ! But as long as Uhuru Kenyatta and William Ruto are free from Cells and are scott-free fighting this international Court things will go very bad and shameful for this great international court: Get Uhuru Kenyatta and his comrade in crime, lock them in , and make them useless as a caged bird cannot free untill its master sets it free! Once Uhuru Kenyatta is free he will continue disgracing and interfering with both witnesses and the court .Uhuru Kenyatta will be supported by Other African dictators .ICC needs to take a new strategy and prove they have teeth!
Uhuru Kenyatta and William Ruto shoud not go scott.free simply becouse both have killed ,threatened ,bribed witnesses.The whole world and especially Yugoslavia that has their leaders in ICC Detention is very keen watching the outcome of Uhuru Kenyatta and his deputy who are threatening the ICC by displaying impunity of the highest order. It is the duty of the Western Civilization and democracy to protect the weak Children/old /mothers and the lame ones who cannot protect themselves.
Let us hope the USA/UK /France will take a lead in defending the weak as they have shown in case of Syria defending the Syrians who are suffering in the hands of a mad dictator who is killing thousands of his own people by using the Sarin gas and other weapons of mass destruction .
USA/UK/France and their allies should interfere with the ICC and Save this International court. Uhuru Kenyatta and his deputy William Ruto should be locket at the hague untill their case is determined failure to lock them the ICC judges, and the court will be rendered useless in the eyes of democracy in this age.
We’ve reached the point someone told us, choices have consequences
Updated Saturday, September 7th 2013 at 12:59 GMT +3
By BARRACK MULUKA
A hungry man is an angry man. This is what everyone in privilege and authority must never forget. Our people say that even a hungry rodent pushed beyond a certain point of tolerance will pounce at the fiercest lion. They advise the lions of this world never to lose sight of this law of nature.
I wrote in this column a few weeks ago that when people have nothing to eat, they would eat their government. After they have eaten up their government, they will eat their country. Sometimes they eat the two concurrently. We must never forget this, even as we tighten the tax noose around the neck of the patient Kenyan citizen.
The dreaded new Value Added Tax ( VAT) regulations became effective on Monday this week. Our solution to addressing poverty is to tax it. Thus we address all the problems in the national exchequer by ever rising and expanding taxation. We don’t create new wealth or create jobs. We go back to the same old quarry. We scrape it as mercilessly as possible. We don’t ask whether this can be sustained.
Paying tax is of course a noble thing. Without this we should stall. You cannot build your own roads and hospitals, or have your own defence force and police force (although we know that some wealthy goons have tried this). We each must contribute to the national exchequer to build our essential services’ base, if nothing else. Yet, is the tax scenario in the country a little frightening?
The lower income tax ( PAYE) brackets sit between 15 and 25 per cent, for people earning up to just below Sh38,000 per month. Once you hit this figure, you must give 30 per cent of your income to the taxman. They say you are rich. And the rich must pay. So the revenue authority will take Sh11,400 as PAYE. You are left with Sh26,600. If you went to buy food with this balance, a handsome Sh4,256 of this balance would go to the taxman. This means that Sh15,656 of your earnings went to the government, leaving you Sh22,344. In effect you gave 41.2 per cent of your income to the government, just slightly less than half of your salary. This is just the very minimum you give to the government, depending on what you do with your money. Remember you are a rich man, earning Sh38,000 a month.
Now it is very annoying when you consider what they do with your money. With some of it, they pay grotesque salaries to Members of Parliament. Think of that again. From a skinny salary of Sh38,000, Sh15,656 is taken away to contribute to an MP’s luxury. They pay him Sh1 million, including your contribution. And, together with his colleagues, the MP determines how and when to make more inroads into your remaining Sh22,344.
When your tax is not paying the MP, it is going into a multiple billion shillings kitty to fund Independence Day celebrations. Or it just buys an office for a retired president, for say Sh700 million. This is unless someone leaks this information to the media. Alternatively, your money could renovate a brand new house for a Deputy President. Or it could hire an expensive jet for him, when he goes on mysterious missions. Alternatively, it could go towards building the gilded statue of a retired president. They should show him carrying a Constitution that the political class does not believe in.
This offends. It however gets more annoying when the taxed cannot put food on the table. Sometimes there is even no table to put food or anything else on, anyway. Such is the life of a Kenyan citizen.
But away from Kenya’s political leaders’ curious appetites, what someone is not telling us is that this country is broke. I have a hypothesis. I suspect the previous government, for whatever reason, spent our last broken coin. The new government found an empty kitty. However, this government is shy. It cannot tell us the truth.
Yet things are set to get worse. I see that the Kenya Government is now ready for a show down with the international community. Through its MPs, Jubilee has fired the first shot in Parliament. They will clearly be trying to defy the ICC. From a purely human platform, I appreciate President Kenyatta and DP William Ruto’s predicament. Those fellows at The Hague can jail you. Make no mistake. That Hague thing is a political court. They set it up exactly for that purpose – to jail people who think that they are so powerful that the law in their own country cannot touch them. This court acts almost as if it is God, where the Prophet Isaiah has said of him, “He brings princes to naught and reduces the rulers of this earth to nothing. No sooner are they planted, no sooner are they sown no sooner do they take root in the ground than he blows on them and they wither and a whirlwind sweeps them away like chaff (Isaiah 40:24).”
Make no mistake. The ICC can jail a sitting president or his deputy, just to pass across a message. So what do you do? Do you defy it? Do you pull out? Or do you just go there and pray for the best? Let us say that we have now reached the point that someone told us of, that choices have consequences. Go to The Hague and risk jail for 30 years and suffer humiliation on the way to jail. Stay away and wait for a warrant of arrest and become a prisoner confined to your country and a few rogue states.
Amid all this, face still international sanctions. One way or the other, however, the ICC is going to push Kenya’s economy into even deeper and dire straits. If you think the cost of living has just shot through the roof, you have not yet seen anything. An unthinking Parliament whose members process their thoughts in the large intestines has only thrown the spanner in the works. Drive carefully, hard times ahead.
Nyanza IDPs cry foul over compensation
The government was Sunday accused of discrimination while compensating Internally Displaced Persons across the country.
Nyanza IDPs Network patron Mr Evans Misati yesterday accused the government of discriminating against certain communities on political grounds.
President Uhuru Kenyatta and his deputy William Ruto presided over the closure of IDP camps by compensating post-election violence victims while those from Nyanza have been left out he alleged.
“It is now an open secret that IDPs from Nyanza regions have been given a raw deal compared to those from Rift Valley and Mt Kenya region who overwhelmingly voted for Jubilee government,” Mr Misati who is also chairman of PPK political party.
Speaking to journalists in Nyamira town Mr Misati said IDPs from Nyanza especially Kisii and Nyamira Counties were excluded during the pay-out despite equally suffering like their counterparts hit by 2007/2008 post-election violence.
He said IDPs from Nyanza were only given Sh10,000 while those from other areas who got Sh35,000 and a piece land.
CAMPS CLOSURE
Over the weekend, the president and his deputy gave IDPs who have been staying in various camps in Rift Valley Sh400,000 per household before closing down their five year habitation.
Mr Misati asked the government to come out clearly and declare why it was discriminating against IDPs from Nyanza region.
He said IDPs from Kisii region were being accommodated by their relatives after their camps at Ekerenyo, Kisii town and Kemera were closed down after the victims were each given sh10,000.
Mr Misati wondered why IDPs from the region could not have a share of Sh3.2billion allocated by the government to resettle post-election violence victims.
He demanded that they government publish all names of IDPs in the country and how each of them was compensated to prove his claims.
“The principle of international law, which under certain circumstances, protects representatives of a state, cannot be applied to acts which are condemned as crimnal by international law…. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State if the State in authorising action moves outside its competence under international law.”
Rudolf Hess (Ruto) was Met by Joy riders>Hehehehe!Hahahahaha!Lololololololoooo>
Canadian envoy warns on Kenya’s ICC pull-out bid
By AGGREY MUTAMBO
A diplomat has warned that the move last week by law makers to have Kenya pull out of the Rome Statute could jeopardise future search for international justice for Kenyans.
Canadian High Commissioner in Nairobi David Angell said pulling out of the Rome Statute, that established the International Criminal Court (ICC), would deal a blow to any future victims of violence that Kenyan judicial system would not handle.
“Citizens should have the same access to international justice just as what citizens of any other country have. The International Criminal Court is a Kenyans’ court,” he said on Monday evening in Nairobi.
“Our position to the Kenyan government is that accountability is important and responding to impunity is important. Part of the international justice involves looking at the interests of the victims. Dealing with any sort of concerns for the victims that gives rise to a judicial process is very important,” he said.
Last week on Thursday, MPs were recalled for a special session where they passed a motion to withdraw Kenya from the Rome Statute in move widely seen as a reaction to the cases facing President Uhuru Kenyatta and his Deputy William Ruto at the ICC in The Hague.
If it goes through, Kenya would become the first state party to pull out of the treaty created in 1999 and amended in 2010. But the cases already before the ICC would not be affected and Kenya would be required to continue with obligations contained in the Statute.
The envoy who was speaking after the launch of a book on ethnicity and nationhood in the country said Kenya, as any other country, has a duty to protect its citizens and entering international treaties was part of guarantee to protect those rights.
“Any country that is a signatory to the Rome Statute has obligations. We are very pleased that the defendants have reaffirmed their intention to cooperate with the court,” he said.
Mr Ruto and his co-accused Joshua Sang trial started early on Tuesday at The Hague. He formally pleaded not guilty to charges of three counts of crimes against humanity for allegedly organising 2007-2008 post-election skirmishes.
President Kenyatta faces five charges of crimes against humanity, murder, rape, persecution and deportation. He would become the first sitting Head of State to be tried at the court when his case begins on November 12 this year.
Former UN General secretary Mr Kofi Annan had this to say>
http://www.nytimes.com/2013/09/09/opinion/justice-for-kenya.html?smid=tw-share&_r=0
Why most mps who accompanied Ruto to Hague are suffering from tapeworms!is it becouse of feeding from raw meat(un-cooked)there was (minyoo) in every toilet they visited in Holland! It is hardly to find a mp without a protruding belly and battocks!uglyand forlon looking faces . Greedy and corrupt faces hunger and lusts to have sex with white prostitutes in red-light district.others were caught hunting for drug market in the underworld.What funny characters of these mps with protruding tummies looking weired in the middle of Europe>You cannot fail to see how primitive these dark skin black natives are in this age!
Ruto &Sang ICC Videos Presented by (The Taliban Lawyer)is Gimmick and Hogwash ,hence Jeff Koinange serves the Intrests of Kikuyu King (Uhuru Kenyatta) K24 is Uhuru Kenyatta Political flagship (like Berrusconi in Italy) The people of Kenya cannot buy such Hogwas neither the ICC.The ICC is very Patience to listen and Watch Ruto’s famous Movie!( William Ruto& Uhuru Kenyatta should not play with Wakenya’s and the world Community brains!These would be Cunning Layers are earning Goldenburg mts Dollars if not Starling Pounds.Wako kwa ka-Job!
Judge Eboe-Osuji asked Lawyer Karim Khan:
“Were the defendants aware, when they put themselves forward as candidates, that the tasks they would assume, if elected, would be jeopardised by the consequences of their indictment?”
“I suppose so,” replied Khan meekly!
ICC SEEKS TO SHIELD MUNGIKI WITNESSES
Friday, November 16, 2012 – 00:00 — BY NZAU MUSAU
ICC chief prosecutor Fatou Bensouda has applied for a delay in revealing the identities of her 15 key witnesses to Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto over concerns for their security.
Out of the 15, six are expected to testify in the case against Uhuru and former Cabinet Secretary Francis Muthaura while the rest apply to the case against Ruto and former radio broadcaster Joshua Sang.
The four are charged with crimes against humanity at the court. Four of the six witnesses to be called in the Uhuru/Muthaura case are former Mungiki insiders who Bensouda says will provide “substantial linkage evidence” on the role of the two officials in the 2007-08 post-election violence.
Bensouda wants to be allowed not to reveal the identities of the witnesses until 30 days before the trial date or 30 days before the date they are expected to testify.
“The nature of the insiders’ evidence creates a powerful incentive to interfere with them so that they do not testify. Each Insider provides unique evidence that cannot be obtained from other sources, and which has substantial incriminatory value,” she said of the 15 witnesses.
One “Witness 219” provides evidence regarding the strategic meetings in which the Rift Valley attacks were organised and set in motion. He has testimony on the instructions, money and materials provided by Uhuru and Muthaura.
“Witness 428” is the one who received the money, uniforms and guns which Bensouda says were sent by Uhuru and Muthaura to aid the retaliatory attacks.
Bensouda says the in light of the limited pool of Mungiki senior members who are still alive and willing to testify, the evidence by the four is irreplaceable.
“Were they to be tampered with, it would substantially affect the prosecution’s case. This creates a powerful incentive to interfere with the insiders,” she told the trial judges.
She seemed to suggest that the three insider witnesses who were relied on by the prosecution during the confirmation of charges stage have since been threatened.
Bensouda says several Mungiki senior members have “disappeared” or been murdered probably by the Kenyan security apparatus. Most of those eliminated were instrumental in the Mungiki’s participation in the violence, she says.
Bensouda says the murdered Mungiki leaders had “direct knowledge” of Uhuru’s and Muthaura’s contributions to the crimes against humanity. She says the four witnesses view these killings as part of “a post-PEV cleanup” operation to conceal the involvement of Uhuru and Muthaura in the violence.
Bensouda cites the murder of Charles Ndung’u Wagacha who was the Mungiki acting chairman during the violence. Wagacha is alleged to have attended meetings with PNU senior officials and liaised with them on behalf of Mungiki leader Maina Njenga, who was in Naivasha prison at the time.
Wagacha and his brother George Njoroge Wagacha, who was a personal assistant of Maina Njenga, and their cousin Naftali Irungu were shot dead in April 29, 2008 at Mai Mahiu at the height of the crackdown on Mungiki.
They were on their way to Naivasha prison to visit Maina Njenga. Bensouda describes Naftali Irungu as a member of the Mungiki top leadership cell, who received money from PNU politicians to organise attacks during the violence.
Bensouda also cites Maina Kangethe Diambo, who was present at several meetings with PNU officials and Mungiki members during the violence period, including the often denied meeting at State House.
Diambo went missing on July 6, 2008. His family have since claimed Diambo was lured from the Nairobi bus station where he was managing and coordinating Dandora matatus to a city hotel from where he disappeared.
His body has never been found. Others listed are former Mungiki spokesman Njuguna Gitau Njuguna who was shot dead in broad daylighton Luthuli Avenue in Nairobi in 2010.
Bensouda says Gitau “played a central role in deploying Mungiki members to Naivasha” during the violence. “The past killings of Mungiki members who had apparent firsthand knowledge of the accuseds’ role in the PEV demonstrates the risks that the insiders face once their cooperation with the prosecution is disclosed,” she argues.
The fifth witness is “Witness 118” who is said to have “unique knowledge regarding the organisation’s operations in the PEV and the accuseds’ roles therein.”
According to Bensouda, this particular witness views the Kenyan state security apparatus as the most significant threat to his security. According to Bensouda, the witness hopes that if the government changes in the March 2013 elections, his security situation will improve.
The last of witnesses against Uhuru-Muthaura is “Witness 7” who has provided evidence regarding victims of the retaliatory attacks and not individual contributions of the accused.
Bensouda says all the nine witnesses in the Ruto case have specific security concerns on their safety, physical and psychological wellbeing, dignity and privacy.
“Given the objective risks to the individuals as a result of their status as prosecution witnesses, the individuals in question would not enjoy meaningful protection were the disclosure of their identities not delayed,” she says.
Bensouda argues that the defence will not be prejudiced by the delays. This is because they apply to a limited number of witnesses whose identities will be revealed in ample time.
She has blacked out the justification for seeking to delay the identities of the nine. The ICC judges will rule on whether to grant or reject Bensouda’s application.
Kenya’s Withdrawal from the ICC – An Act in Vain?
Posted on September 6, 2013by Mark Kersten
Yesterday, Kenya’s Parliament voted in favour of a motion to withdraw from the International Criminal Court (ICC). In the wake of the vote, there has been some alarmist rhetoric about what Kenya’s move to withdraw from the Court means for the ICC. In yesterday’s post, I tried to dispel some of the concerns that the vote to withdraw would affect the ICC cases against Kenyan President Uhuru Kenyatta and William Ruto or that a Kenyan withdrawal would lead African states to leave the Court en masse.
But what does a potential withdrawal really mean for Kenya? Perhaps not as much as has generally been assumed. For starters, the motion does not mean that Kenya has already withdrawn from the ICC. Another bill to that effect will have to be introduced in Kenyan Parliament within the next 30 days. It will require a two-thirds majority to pass, a tall order for the Jubilee Alliance. It is far from guaranteed that such a bill will pass.
Furthermore, in a brilliant comment on the blog yesterday, Thomas Obel Hansen, an Assistant professor of international law at the United States International University in Nairobi, argued that “Parliament’s move raises more questions than it provides answers” and that it is far from guaranteed that Kenya will fully withdraw from the ICC. Obel Hansen’s comments are worth quoting in full:
First of all, it is important to point out that the motion passed was not the original one tabled in Parliament which you cite here, but an amended version, in which the sentence “further aware of a resolution of the National Assembly in the Tenth Parliament to repeal the International Crimes Act and to suspend any links, cooperation and assistance to the International Criminal Court” was deleted. This amendment, it was said during the debate, was adopted in order for Kenya not to defy its obligations towards the Court. So, on the one hand, many of the parliamentarians who took the floor yesterday said that their intention with the motion is to avoid that Kenyatta and Ruto stand trial in The Hague, but on the other hand, if this was really the intent it is surely curious that this amendment was included without much controversy (an a session that otherwise didn’t lack any drama).
Further, whereas the motion states that a bill will be introduced which will compel the Kenyan Government to withdraw from the Rome Statute, it is not clear that Parliament actually has the powers to do so. Kenya’s Treaty Making and Ratification Act 2012 makes it clear that it is the prerogative of the executive branch of government to initiate ratification as well as denunciation of international instruments, though Parliament must be consulted and can under certain circumstances block such decisions. So, if Parliament may only encourage the executive to initiate a withdrawal but cannot itself do so, there wouldn’t really be a need to repeat that message in an Act of Parliament to be adopted at a later stage. The motion would clearly suffice.
In contrast, if Parliament wanted to repeal the International Crimes Act (ICA), it could simply have done so by passing a bill, rather than passing a motion saying that it intends to do so within the next 30 days. Whether the ICA will be repealed will obviously depend on the outcome of the vote on such a bill, not the passing of yesterday’s motion.
And what purposes would repealing the ICA serve? Leaving aside that, from an international law perspective, it is clear that neither withdrawing from the Statute nor repealing the ICA would have any impact on the obligation to cooperate with the Court with respect to the ongoing cases. Should Parliament repeal the ICA it is interesting to note that this wouldn’t change a thing in terms of the obligation to cooperate with the Court on the ongoing cases from a national law perspective. The various obligations that follow from the ICA would continue to form part of Kenyan law for at least a year already because Article 2(6) of the Kenya Constitution makes it clear that “any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution”. In other words, since the Rome Statute will in all circumstances continue to form part of Kenyan law for at least a year, the possible passing of a bill to repeal the ICA would not be helpful if the purpose is to create a foundation in national law for not cooperating with the ICC since such obligations already follow from the Rome Statute, and thus an instrument that forms part of Kenyan law.
If Parliament intended to create a basis for non-cooperation, it thus seems to have acted in vain. Of course, it might be that the motion was primarily a symbolic act aimed at showing support for Kenyatta and Ruto, in a sense, repeating Parliament’s vote in December 2010. If so, it wasn’t necessarily well-thought through either.
Of course, many have already argued that Kenya’s move was little more than a political ploy and show of support for Kenyatta and Ruto ahead of their trials. If it had been about justice, Kenya’s Parliament might have discussed what the country could do to bring perpetrators of the 2007/08 post-election violence to account. They didn’t.
Obel Hansen’s remarks suggest that there may be less to this vote than meets the eye. It is far from certain that Kenya will actually withdraw from the ICC.
THE RAILA ODINGA SECRETARIAT
Monday, March 12, 2012
Press Release on the Coming General Election
1. The next General Election in Kenya will be a referendum on the rule of law – the chance to choose between the rule of law and impunity, between reform and reversal of the gains of the past two decades, between anarchy and order.
2. Kenyans participated in a democratic election on 27 December 2007. The election was subsequently compromised.
3. Some forces with a selfish agenda of their own, which included settling scores that had nothing to do with the elections, took advantage of the ensuing protest against this disenfranchisement of the Kenyan electorate. This was a repeat of similar events in 1991-92 and in 1997. In 2008, more than 1,300 Kenyans were killed, hundreds of thousands were forcefully renditioned and thousands suffered all manner of indignity, classified in the international system as crimes against humanity.
4. The victims were Kenyan citizens. They were not occupying forces from some foreign country, whose killing and eviction might have been cause for heroism and celebration. The matter was then supposed to pass quietly away, as in 1992 and 1997, and to wait for another election and another wave of crimes against innocent citizens.
5. The Grand Coalition Government was established to restore the country to normalcy and shepherd institutional reforms. Everyone said, “Never again.” But not everyone has been co-operative. The beneficiaries of the 2008 injustice have shown they will stop at nothing to frustrate reform and justice.
6. It is this spirit of impunity that frustrated efforts to establish a local tribunal to deal with post-election violence. Parliament was mobilised to defeat the Constitutional amendment that sought to do this, with the main perpetrators cunningly creating the false impression that they sought real justice, and could only achieve it through the ICC. The reality is that they did not wish the matter to be addressed at all – locally or otherwise.
7. The same people shouting then, “Don’t be vague, let us go to The Hague,” are the ones now demonising the ICC. They seek to kill two birds with one stone – dragging the Prime Minister and other innocent parties into their self-inflicted woes, and at the same time making political capital out of the ICC matter.
8. The ICC has unfortunately now become an election issue. But since it IS an election issue, let it now be known that the coming elections will also be a referendum on impunity. The time has come when every one of us must stand up to be counted. Either you are for the rule of law, or you are for impunity. It can’t be both. A choice must be made.
9. The cases before the ICC did not arise out of thin air. They are the outcome of circumstances where Kenyans were killed, forcefully evicted and otherwise dehumanised. They are also the outcome of a systematic and lawful investigation, which the Republic of Kenya is lawfully party to. At the end of that investigation and subsequent court hearings, charges have been raised against those the ICC considers should be called upon to answer for the lowest moment in Kenya’s national history.
10. A lawful process having thus been followed, the Kenyan citizens before the ICC should respect the rule of law. They should seek to defend themselves in the impending trial. If they are innocent, as they have frequently professed at charged public rallies, the court will no doubt acquit them. No public petulance on their part can substitute for the court process. Nor can forged documents and the besmirching of innocent persons’ reputations assist them.
11. It is clear that the present posturing against the ICC, complete with the weaving in of the PM’s name and that of the British Government, is a dress rehearsal for non-cooperation with the ICC. It is clear that the foundation is being laid for the accused to refuse to attend trials of the cases against them.
12. In the past, election-time atrocities have gone unaddressed. People are therefore angry that, this time, things are different. They cannot understand why it should not be business as usual. To try to change that, they are feverishly mobilising people to stand on the side of impunity. They have put impunity on the election agenda. It appears they would like to see Kenya burn again.
13. It is up to each Kenyan, therefore, to search his or her soul and decide where they stand. The choice is between the law and impunity.
14. Finally, the lie is being sold that the Prime Minister is a beneficiary of post-election violence. In fact he was the greatest loser. In the interests of peace, he accepted being denied his rightful position as the elected President of Kenya.
15. The real beneficiaries of post-election violence are only too evident. They include those currently in the process of returning property acquired in areas where post-election violence victims were known to have been dispossessed of their land. Now these beneficiaries are rushing to return the land, in order to evade court processes. What greater admission of guilt could there be?
Signed
The Raila Odinga Secretariat
12 march 2012
African Tin-Pot Dictators has one thing in Common>(Thinking with their Dark-black ANUSES>(Anus thinking two-legged African Chimps)http://www.the-star.co.ke/news/article-135688/15-african-states-join-ruto-icc-case
The Fear and foolishness of 41 primitive tribes has given Kikuyu God-Like Power to Manipulate Laws and Constitution of Kenya> Kweli Kikuyus will Rule all Kenya tribes for another 1000 years or more>
Lobby seeks to block ODM leader Raila Odinga in 2017Updated Friday, September 13th 2013 at 13:38 GMT +3
By Abigael Sum
A lobby group has launched a change-the-constitution campaign that could block former Prime Minister Raila Odinga from the next presidential elections.
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In the proposed amendments, the National Movement for Democracy Advancement ( NMDA) wants all the heads of the three arms of government namely the Executive, Legislature and Judiciary to retire at the age of 70.
If the proposal is adopted, it would mean that Raila, who is highly expected to take another shot on the presidency in 2017, will not be eligible to vie as he will be 72 years old.
Harmonise law
“This is a call for harmonisation of the Constitution because it is unfair to have only the head of the Judiciary retiring at the age of 70 and exclude the President and the Speaker,” said Njiru Kimaru, NMDA Convener.
Age limit
He added: “This not to discriminate anyone from contesting the presidency but there should be an age limit because there is no rationale for them not to retire at the same time. The public service has an age limit; it is only logical for the Executive and the Legislature to have an age limit as well.”
The lobby group states that since over 70 per cent of Kenya’s population fall in the youth bracket, the presidency should reflect the age group of the majority.
NMDA are calling for an amendment to have a one 10-year presidential term to allow for uninterrupted running of government and development and protect Kenya from the constant campaign mode.
The group also wants the decision to withdraw from the Rome Statute be subjected to a referendum.
The group said the referendum should covers other emerging issues arising out of challenges met during the implementation of the Constitution.
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Robertson: ICC trial of Kenyan leaders is a tribute to international justice
As the trial of Kenya’s political leaders resumed in the Hague, the first witness has now testified. The woman’s identity is protected and her face and voice were disguised as she addressed the court.
The first witness to testify at the International Criminal Court trial of Kenya’s deputy president William Ruto described how a mob of youths torched a church where 2,000 people had sought refuge from the 2007 post-election violence. The woman’s identity was kept secret, her face and voice distorted, under an order of the presiding judge Chile Eboe-Osuji.
For an insight into what effect witness protection can have on the trial and how significant the trial is for international justice, DW spoke to barrister Geoffrey Robertson.
DW: How easy is it to keep the identity of the witnesses secret in this era of advanced technology?
Geoffrey Robertson: Techniques for keeping witnesses anonymous where it’s really essential to do so, are quite well advanced.
The problem always is, when you’re cross-examining an anonymous witness, you can’t tell what biases he or she may have. And what other commitments they may have that might tend to make them give false evidence. So it is not a very satisfactory system.
And I would have to say that the climate of intimidation of witnesses in this trial, particularly the Kenyan witnesses, has been unprecedented and is very concerning. Of course it happens in national courts as well as international courts. But in a case of this importance, it has been most regrettable.
Based on this first testimony, how hard will it be for the prosecution to get the evidence it needs for the judges to rule in its favor, especially since other witnesses have withdrawn from the case?
I think that’s a matter for the court. It is a significant achievement, I think, for the court and prosecution to put in the dock the people who are exercising power in the country. In Kenya we have got the vice president being tried now and in a couple of months we will have the president. I think that is a great tribute to international justice, which is only recent. It happened in Nuremberg and then it went to sleep for about 50 years and then it started again for the Balkans and went on to Rwanda and my court in Sierra Leone.
I think the Kenyan proceedings are significant for that reason. But we now have to look closely and see whether the fact that these people in the dock are wielding power has significantly deterred witnesses from coming forward.
There have been claims of money exchanging hands on both sides, either to encourage witnesses to testify or to persuade them not to appear in court . What do you make of this?
They are very serious allegations and it will be up to the council on either side to expose that. If it has happened, there is a right to cross-examine and if there is any evidence of witness bribery, then hopefully it will be brought out.
How could the decision by Kenya’s parliament to withdraw membership of the ICC affect the outcome of this case?
Not at all. I think the decision by Kenya’s parliament was a stupid and rushed and obviously biased decision. Over a thousand innocent people were hacked to death. In Kenya you can’t try this – because you can just imagine if there is witness intimidation in The Hague, there would have been massive witness intimidation and judge and jury intimidation in Kenya itself.
There was widespread agreement that the International Criminal Court should take it over and now suddenly these wretched politicians, some of whom are implicated in the violence, are getting cold feet and threatening to withdraw from this great international court. I think people will see that for what it is – a very self-interested action which is not in the interest of Kenya or its people.
Geoffrey Robertson sat as an appeal judge at the UN Special Court for Sierra Leone from 2002 to 2007 and is currently defending Wikileaks’ founder Julian Assange in extradition proceedings in the United Kingdom.
Interview: Isaac Mugabi
http://www.dw.de/robertson-icc-trial-of-kenyan-leaders-is-a-tribute-to-international-justice/a-17096937
Controversy dogs Kenyan VP’s ICC trial
Last updated: 12 hours ago
Critics say The Hague-based court is ‘flawed’ and work in Africa amounts to ‘race-hunting.
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Nairobi, Kenya – Philip Kimunya pulls back his clothes to reveal scars on his hands and legs from five years ago, when he was trapped in a burning church in western Kenya during the inter-ethnic violence that followed the disputed elections in 2007.
Kimunya still wants those responsible for his injuries to be brought to justice. Like many Kenyans, he is riveted by the ongoing trial at the International Criminal Court (ICC) of two men accused of orchestrating the bloodshed.
Nowadays, he cares for his mother, who suffered a mental breakdown during the weeks of post-election carnage. “I want the trials to continue so that I can know how it happened that my life was disrupted so much,” he told Al Jazeera.
The violence that followed Kenya’s presidential elections claimed at least 1,100 lives, and forced more than 600,000 people to flee from their homes. Like Kimunya, many other survivors want to see the perpetrators brought to justice.
But achieving justice is not simple. Controversy around the current and upcoming ICC trials of Kenya’s leading politicians in The Hague continues to drive a wedge through the centre of this country of 44 million people.
This week, witnesses started testifying against deputy-president William Ruto, 46, who is accused of planning the atrocities. Prosecutors say he spent 18 months amassing militiamen, weapons and money ahead of the December 2007 poll.
Inciting violence
When his political party appeared to be losing, Ruto, who is from the Kalenjin tribe, allegedly unleashed waves of violence against supporters of then-president Mwai Kibaki, who hails from Kenya’s dominant Kikuyu ethnic group.
Gangs toting machetes, knives, and bows and arrows went on a rampage, torching homes and hacking victims to death. Reprisal attacks led to a spiralling ethnic conflict that was not resolved until international mediators stepped in and brokered a power-sharing deal.
There are allegations that the ICC is a European court targeting African leaders with a political agenda.
– Njonjo Mue, International Centre for Transitional Justice
On Tuesday, the first prosecution witness, known only as P-0536 to protect her identity, choked with emotion as she told judges how a mob of machete-wielding youths set ablaze the church where she and her family had sought refuge.
Ruto shares the dock with Joshua arap Sang, 38, who allegedly used his Kalenjin-language radio station to whip up ethnic hatred against Kikuyus and other tribes.
Both defendants have pled not-guilty to three counts of murder, deportation and persecution of Kikuyus and others.
In November, a separate trial for President Uhuru Kenyatta is due to start. The 51-year-old son of Kenya’s independence icon, Jomo Kenyatta, is accused of enlisting his Kikuyu tribesmen to carry out retaliatory attacks on opposition supporters. He also denies the charges.
Global rights groups support the court action. Carla Ferstman, director of Redress, said trials can win “justice and truth” for victims. Netsanet Belay, from Amnesty International, warned of intimidation and an “extremely difficult environment” that has caused some witnesses to withdraw.
“For decades those who have turned Kenya’s elections into bloodbaths have gotten away with murder,” said Daniel Bekele, from Human Rights Watch. “This ICC trial tackles an impunity crisis in the country, and offers a chance for justice denied to Kenyans by their own government.”
Declining support
But within Kenya, public support for the ICC is waning. In July, the polling group Ipsos-Synovate calculated that only 39 percent of Kenyans wanted trials to proceed. That figure had dropped from 55 percent in April 2012.
This is partly because Kenya is torn between the desire for justice and the need for peace. Ahead of the most recent presidential vote in March, the one-time enemies, Kenyatta and Ruto, unexpectedly formed the Jubilee Alliance coalition and won a first-round victory.
Unlike the post-election mayhem of 2007-08, this year’s presidential election was largely calm. As well as winning the vote, the union of Kenyatta and Ruto – and their Kikuyu and Kalenjin followers – is seen as a source of peace and reconciliation.
“The political rhetoric is that the country is peaceful now because Kikuyus and Kalenjins work together in government,” said Njonjo Mue, from the International Centre for Transitional Justice. “But the reality is different. Those who endured rape, death and destruction of property still wait for justice.”
On the election trail, the candidates used the ICC as a campaign platform, warning voters of meddling prosecutors in the Netherlands, and whipping up nationalist sentiment in a country that was a British colony until 1963.
“It is no longer a secret that Kenyatta and Ruto applied ethnic manipulations of numbers to win elective positions not to serve the country and her interests, rather to shield themselves from accountability,” said Ndungu Wainaina, director of the International Center for Policy and Conflict.
Earlier this month, Kenyan parliamentarians voted to quit the ICC’s founding treaty, the Rome Statute, which Kenya joined in 2005. While the move was symbolic, it will take East Africa’s biggest economy at least one year to fully withdraw, and does not affect current trials.
Is ICC targeting Africans?
Lawmakers branded the court a “neo-colonialist” institution. The house majority leader Kithure Kindiki warned the “ICC has become a political court”, and its prosecution of Kenya’s leaders was a “humiliation … in a foreign country”.
Wariness of the ICC is not unique to Kenya. It is criticised because all its cases target Africans – from Sudanese president Omar Hassan al-Bashir for genocide and other crimes in Darfur, to the former Congolese fighter Bosco Ntaganda, who turned himself in to the US Embassy in Kigali in March.
The people who run this court want to increase their powers and are intoxicated by the idea of a supranational authority to police everything.
– John Laughland, Institute of Democracy and Cooperation
At the African Union (AU) summit in May, leaders urged the ICC to refer Kenya’s trials back to Nairobi. Hailemariam Desalegn, acting as AU chairman, said the court’s “flawed” work in Africa amounted to “race-hunting”.
“There are allegations that the ICC is a European court targeting African leaders with a political agenda,” said Mue. “But these cases were either referred to the ICC by African countries or by the UN Security Council. Kenya was given several opportunities to try the cases at home, but the political elite declined to do so.”
The trials also open the ICC to criticisms that have dogged it since it began operating in 2002 – that its jurisdiction is limited by a membership that omits such major powers as the US, Russia and China. Israel’s absence is a bone of contention among Arab governments.
In The Standard newspaper, columnist Billow Kerrow criticised the “duplicity of the West”, which sees Kenya’s leaders targeted while others are not indicted. “Syria’s Assad has massacred thousands in broad daylight … yet, it is not an international crime,” he wrote.
Other critics say the court is overextending its powers. John Laughland, director of studies at the Institute of Democracy and Cooperation in Paris, said that Kenya’s post-election violence has no place in a tribunal for war crimes.
“The court was set up to deal with the laws of war, not judge on every single case of sporadic violence that happens around the world,” Laughland said. “The people who run this court want to increase their powers and are intoxicated by the idea of a supranational authority to police everything.
“What frightens me about that is that it is all being done without following the basic constitutional principle that all power needs to be restricted and counterbalanced.”
http://m.aljazeera.com/se/201391612555814813
The worst that has happened Kenyans Poachers Killing Elephants and then Caught -up by the warders having SEX with dead Elephants>
http://www.nation.co.ke/oped/Opinion/We-kill-jumbos-for-the-same-reason-that-we-kill-old-people/-/440808/1998232/-/14ejfyqz/-/index.html
Kenya cannot escape the spirit of international law
17 Sep 2013 15:42| Allan Ngari
Kenya’s withdrawal from the Rome Statute establishing the International Criminal Court (ICC) will be debated in the national assembly on Thursday.
The prospective Bill seeks to not only withdraw Kenya from the Assembly of States Parties to the Rome Statute, but to also repeal the International Crimes Act (No 16 of 2008). This initiative has been met with heavy criticism from Kenyans and segments of the international community, against members of Parliament and the political elite in support of the motion, after it was recently tabled before the House. This move is seen as a renewed effort by the political elite in Kenya to scuttle the ICC trials of the President Uhuru Kenyatta and Deputy President William Ruto.
In March 2013, MPs began their five-year mandate and in this intervening period, they have not endeared themselves to the Kenyan electorate. Recently, MPs aggravated the public by voting as one block to increase their salaries (again) and ignoring the recommendations of the government watchdog on public service wage bill, the Salaries Remuneration Commission (SRC). The SRC urged MPs to be satisfied with the pay package that had been set for MPs prior to their election in March 2013 and in line with keeping the country’s wage bill as equitable and fair as possible to all public servants.
As can be expected, civil society organisations in and outside of Kenya have published strongly worded statements against the move by Parliament seeking Kenya’s withdrawal from the Rome Statute. Hardly a day has gone by in this last week without the publication of reports and statements of concerned parties relating to the intended withdrawal. If the Bill passes, it will erode the very gains that the country has made through legislation in the fight against impunity for international crimes following the Kenya national dialogue and reconciliation process that brought an end to the 2007/2008 post-election violence. This national dialogue and reconciliation process led to the creation of institutions and frameworks that would assist Kenya to deal with past injustices and secure a peaceful future.
On their part, the international community, including the ICC and the Assembly of States Parties (ASP) to the Rome Statute, has reminded anyone who cares to listen within the Kenyan government, that withdrawal from the Rome Statute does not affect the conduct of trials against the Kenyan president and his deputy. In addition, under the provisions of international law captured in the 1969 Vienna Convention on the Law of Treaties, Kenya must comply with obligations, including that of cooperating with the ICC as a requirement under the Rome Statute, arising from the subject matter inquiry before the trial chambers. Those are norms that apply to any international treaty and withdrawal from being a signatory to a treaty does not automatically or immediately release a state from all obligations relating to the treaty. A state can choose to disentangle itself from a commitment it willingly made to the letter of the law in an international treaty, but it is not as easy to be free from the spirit of the law.
Customary norms
The preamble to the Rome Statute captures the very essence of the treaty, which Kenya is bound to as a state party and further bound inseparably by customary international norms, particularly because the international community recognises that millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity. These customary norms dictate that it is the duty of every state to investigate and prosecute persons accused of committing these types of atrocities or otherwise transfer these individuals to another criminal jurisdiction that is able so to investigate and prosecute within the requisite standards.
From the sentiments and statements expressed against the Kenyan MPs, there is a resistance to the arguments against the withdrawal from the Rome Statute. Neo-colonialist sentiments and rumours are milling about town. It certainly hasn’t helped that prior to the March 2013 elections in Kenya, some members of the international community issued de facto ultimatums and threats to Kenyans, in terms of limiting Kenyan governmental interaction to “essential business” should they have voted for the ICC accused persons. Kenyans saw this as an affront to their right to select their own leaders.
Ultimately, this misguided attempt by Parliament of a wholesale purchase of salvation for the president and deputy president from the ICC trials through this omnibus Bill must therefore be approached from a different perspective. One which dispels the rumours about the perceived ill-intentions of the ICC intervention backed by Western imperialists and the opportunity presented to the country and its political elite to deal conclusively with what has become systemic injustice to Kenyans over the years. Impunity for gross human rights violations and a widening rift between the political elite and their constituents caused by little or no form of accountability has been Kenya’s tale in its 50-year independent history. Kenyans remain an aggrieved people by the state and state structures. This is clear from the numerous accounts of injustices documented most recently in the Kenya truth, justice and reconciliation commission report.
A number of processes will unfold this week; firstly, one can only hope that there will be a debate in Parliament on Thursday – with both proponents and opponents of the Bill, as the democratic ethos demands. Secondly, that the debate will be robust and interrogate the motion critically. One unexplored avenue, that I believe could turn this whole debate around, is the opportunity presented by the situation in Kenya at the ICC, to develop the emergent principle of positive complementarity. The office of the ICC prosecutor interprets positive complementarity as a coordinated approach to prosecution of international crimes by both the ICC and national criminal justice systems. This form of cooperation is between the ICC and states – after an intervention by the ICC has been initiated: voluntarily by a state; by the UN Security Council; or by the ICC prosecutor, and the ICC pre-trial chamber authorises investigation and confirms charges against certain individuals. Specifically, the ICC would conduct the trials of those deemed to be most responsible for the international crimes, while national criminal justice systems would investigate and prosecute intermediate and lower levels of perpetrators of these crimes.
Violence
The questions that should be asked are: how can the ICC trial procedure assist an international crimes division of the Kenyan high court to investigate and prosecute intermediate and low-level perpetrators of the post-election violence?
Can the evidential narratives from the ICC trials be introduced in the Kenyan courts and what legislation should the national assembly consider to facilitate this and other similar processes?
The Kenyan director of public prosecutions Keriako Tobiko tasked a team in his office to evaluate the status of post-election violence related cases in 2012. The findings indicated evidentiary and legislative loopholes and gaps preventing effective prosecution of thousands of cases and in essence a denial of justice to hundreds of thousands of victims of the 2007/2008 post-election violence.
Lessons can be gleaned on how positive complementarity can practically work in Kenya from the Balkan States in their quest for international criminal justice. A clear parallel in this regard can be seen in the cooperation between the War Crimes Chamber of the Courts of Bosnia and Herzegovina and the International Criminal Tribunal for the former Yugoslavia, an international criminal tribunal, with many similarities to the ICC and established by the UN Security Council to deal with the atrocities committed in the Balkan States. Legislators in Bosnia and Herzegovina, being cognisant of the limitations of the tribunal (including temporal mandate), established the courts and supporting legislation for their full functioning in the post-conflict state.
Without a doubt, there are many challenges faced by the ICC, particularly relating to the conduct of the Kenya cases. Equally there are opportunities presented within the Rome Statute system to advance the fight against impunity even at the state level. What we need now in Kenya is to draw the quid pro quo for the national criminal justice system from the processes in The Hague.
Legislators should rather propose amendments to strengthen existing legislation, and enact new laws that support and ensure the protection of human rights and the respect for the rule of law. It is the time to neither repeal the International Crimes Act (No 16 of 2008) nor engage in regressive actions of withdrawal from the Rome Statute. MPs should not throw out the baby with the bath water.
Allan Ngari is Project Leader for Kenya and International Justice at the Institute for Justice and Reconciliation in Cape Town and an Advocate of the High Court of Kenya.
Withdrawal means dictatorship and untrustworthy leaders to prevail in the entire dark continent – Africa. No quality control internationally for political leaders and prevalence of wild justice to the citizens.
The primary question is why should this ratify ICC and the ICC to be there without performing its role of maintaining justice and order to the leaders. It should not be a toy!
If they know the way to avoid ICC, is by being loyal and honest to the people and we should not allow it to happen.
One other leader was saying ICC has been unfair, and the victims said it should do its job. A contradicting point. One also kept saying only African leaders are the majority cases in ICC. SIMPLE inference is that they are also majority doing injustice. They should embrace that.
The world has to be a better place to leave and not hell.
Finally, African leaders are displaying a highest degree of stupidity and may occlude that Africa will become hell if let to withdrawal from ICC.
International community should impose sunctions to Africa. That will be the biggest sunction ever imposed.