Parliament was sharply divided on Thursday over attempts to rescue six prominent Kenyans from facing criminal charges at The Hague.
A section of MPs thwarted attempts by Chepalungu’s Isaac Ruto to move a motion asking Kenya to withdraw from the Rome Statute on grounds that it was unconstitutional.
This came as the government promised to ensure that the country sets up a credible judicial mechanism to try post-election violence suspects by April next year in order to save the six from prosecution at the International Criminal Court.
Prime Minister Raila Odinga told MPs that the government was exploring four options to stop the six suspects named by Chief Prosecutor Luis Moreno-Ocampo from the trip to The Hague.
On Wednesday, Mr Moreno-Ocampo named politicians Uhuru Kenyatta, Henry Kosgey and Wiliam Ruto and civil servants Francis Muthaura and Hussein Ali and journalist Joshua arap Sang as the people he wants to indict for the 2008 chaos.
The four options, Mr Odinga said, included setting up a credible local judicial mechanism or seeking a resolution of the United Nations Security Council to defer the ICC process against the suspects.
Other options entailed Kenya withdrawing from the Rome Statute or letting the ICC prosecutions to proceed.
Deferment of ICC process
The PM maintained that the most viable option was to set up a local tribunal as a withdrawal from the Rome Statute or the deferment of the ICC process would not save the six accused persons from facing charges at The Hague.
Mr Odinga criticised MPs who were pushing for Kenya’s withdrawal from the Rome Statute, saying, they were the very ones who frustrated the government’s efforts to set up a local tribunal early this year.
“Mr Ruto (Isaac) said that we should not be vague, we want The Hague, it is Ruto who took us to The Hague, Mr Speaker,” Mr Odinga charged.
During debate on Mr Ruto’s motion asking Parliament to pass a resolution asking Kenya to pull out of the Rome Statute, Justice Minister Mutula Kilonzo and MPs Martha Karua, Danson Mungatana and Gitobu Imanyara reminded Parliament that the motion infringed on the new Constitution.
They cited two clauses in the Constitution — article 2(5) and article 2(6) — to question 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 had earlier in the day been delayed, but when it came up later, MPs sought direction from deputy Speaker Farah Maalim on its constitutional validity.
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 Mr Kilonzo and Ms Karua.
The emotional push to have the debate proceed floundered when Mr Mungatana turned the heat on the House Business Committee, Mr Ruto 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,” Mr Mungatana said.
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 in 2008.
Mr Kilonzo, together with Dr Boni Khalwale (Ikolomani, New Ford Kenya) reminded MPs that the statute was the First Schedule of the Act, and it was wrong to try to amend it through a motion.
“You cannot approach it by way of a motion,” the Justice Minister told agitated MPs who seemed keen to protect their political godfathers already fingered by the ICC as suspects.
“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,” the minister said adding:
“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.”
Mr Kilonzo 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 former Foreign Affairs Minister Chirau Ali Mwakwere (now Trade Minister) who put pen to paper to commit Kenya to the statute.