Anti-Hague Escapades Abound

As the trials edge closer, the Anti-Hague Circus is back in town; this time with twin ringmasters Aden Duale, the National Assembly Majority Leader and Kithure Kindiki, the Senate Majority Leader. Both predictably arrive with selective memories about how the ICC became involved in Africa and whether withdrawal from the Hague will actually protect the political class from further intrusion by these pesky International Tribunals. The fact that Kithure Kindiki is also a lawyer for one of the accused makes the awkward situation even worse- the image of the political class reflexively protecting its own looms over all.

Parliament is being recalled (with sitting allowances at public expense) to discuss the ICC, while over 70 MPs are allegedly preparing to accompany the Deputy President (at public expense) on his first court appearance. The reason the public expense is so important is because one of the accused assured the nation months ago that the ICC was a personal challenge for himself.

Yet the ‘personal challenge’ is taking up public time and money that MPs could be using to address immediate matters of public importance- such as the painful hike in the cost of living and the price of milk, both of which are having grave effects upon Kenyan households. Not to mention the recent series of strikes running through the public sector.

The Kenyan courts will also be engaged with yet another ‘urgent’ attempt to prevent the ICC trials of Kenyatta and Ruto- everyone forgets Sang- from proceeding. The petitioners, the National Conservative Forum(??) are arguing that a constitutional crisis and instability will ensue if both the President and Deputy President leave for the Hague trials at the same time.  The Petitioners therefore want the High Court to prevent the President and Deputy President from travelling to the Netherlands.The fact that warnings of such constitutional and administrative problems were given to Ruto and Kenyatta before they chose to run for office does not seem to concern the Petitioners. So far the High Court has merely directed that all parties be served with the application.

 

An earlier petition- the 2010 case of Joseph K Gathungu vs The Attorney General and Others- attempted to block the ICC from allegedly breaching Kenya’s sovereignty by investigating the 2007/08 Post Election Violence and prosecuting Kenyans found to be connected with those events. The petition was thrown out. That time, the petitioners attempted to justify their argument on the basis that the new constitution would cure all ills and so the ICC’s services were no longer necessary- the judge disagreed, pointing out that the same constitution also made the ICC treaty part of the law of Kenya and the procedure under the Rome Statute was for the ICC- not local courts- to determined if it had jurisdiction in the Kenya situation. Kenya, said the judge, was a member of the community of nations and under an obligation to observe international agreements it ratified. The new constitution did not change that- if anything it strengthened the ties binding Kenya to international law.

 

Nowadays, the anti-Hague brigade, having been thwarted in their argument that the ICC breaches Kenyan sovereignty, tend to complain that the March 4 elections were a referendum on the ICC and since the ICC ‘lost’, the trials must stop.

 

Indeed tone of this latest petition by the National Conservatives is eerily similar to a shrill letter by Kenya’s Permanent Representative to the UN. The letter was leaked earlier this year; it warned the UN Security Council that Kenya risked a violent crisis- that would threaten the region- if the Hague trials were allowed to proceed. It also implied that the March 4 election made the ICC trials moot since Kenyans had passed ‘judgement’ through the ballot box.

Now it seems that, having failed to convince the international community (bar friendly local dictatorships) to support the anti-Hague cause through the ‘threat to peace and security’ sledgehammer, the accused’s associates will bludgeon Kenya with the message that national security and constitutional authority is under threat. This questionable foundation would then allow the accused to stand up and defy the Hague, justifying this impunity as a higher calling ‘for the good of the nation’.

There is a small cause for concern because much of the world is pre-occupied with the chemical weapons of Syria. Defiance of the ICC by Kenya may only register as a blip in the radar if military action in the Middle-East is the focus of global attention. Of course, the accused themselves are adamant that they will observe their obligations to the ICC to the letter.

Let’s stay tuned for the next visit by the circus…

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Following the Hague trials of 4 Kenyans to the end. A blog by Archie Nyarango

UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

AfricLaw

Advancing the rule and role of law in Africa

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