House recalled as Jubilee leaders push for Kenya’s withdrawal from ICC

Any move by Parliament will have no immediate legal significance because, according to Article 127 of the Rome Statute, the withdrawal from ICC can only
take effect 12-months after a notice of withdrawal is filed with the Secretary
General of the United Nations. [PHOTO: FILE/STANDARD]

By Alphonce Shiundu

Kenya: A two-pronged assault on the International Criminal Court was launched by Parliament and in local courts, a week to the trial of the first Kenyan case at The Hague.

Today the High Court will hear an application seeking to block President Kenyatta and his deputy William Ruto from travelling to The Hague for their trials “to avert a power vacuum”.

On Tuesday; the court certified as urgent the application by the National Conservative Forum filed by their lawyer John Khaminwa.

On Thursday afternoon, the National Assembly will reopen early for a special sitting to discuss a motion intended to sanction withdrawal of Kenya from the Rome Statute, which established the ICC.

And at The Hague, Ruto has petitioned the ICC presidency to reconvene the plenary of judges to reconsider his application to have his trial either in Kenya or Tanzania, which was rejected after a narrow vote. Tuesday, Deputy Speaker Joyce Laboso recalled the MPs for the special sitting on Thursday at 2.30pm to discuss the Motion “relating to membership of Kenya to the Rome Statute of the ICC.”

Laboso told The Standard shortly after the public release of the Gazette Notice that she had acted on a request by the Leader of Majority, Adan Duale. She said the Standing Orders allowed the Speaker to recall MPs for a special sitting to discuss specific matters that are deemed “urgent and exceptional”.

“Standing Order 29 (3) is very clear that the Speaker, may on the request of the Leader of the Majority Party or the Leader of the Minority Party appoint a day for a special sitting of the House. I am also required to notify the members of the place, date and time appointed for the special sitting,” the Deputy Speaker said.

“It is the only business that we are going to talk about on that day. After that, members will go back to their recess,” the Deputy Speaker told The Standard.

Power vacuum

Parliament was scheduled to reconvene on September 17. Leader of Majority in the Senate Kithure Kindiki indicated he had also petitioned Speaker Ekwee Ethuro to recall the Senate to discuss the same Motion.

The Minority Leader in the National Assembly, Francis Nyenze, said he had not been consulted in the decision to recall the House. He said CORD has planned a special Parliamentary Group meeting tomorrow afternoon to strategise on how to deal with the issue.

CORD leaders had earlier welcomed the special sitting on condition the agenda would be “discussions on how to deal with a possible power vacuum” and not a substantive Motion to pull the country out of the ICC.

Tuesday an opposition MP, Opiyo Wandayi (Ugunja), claimed the special sitting was just a political move “initiating the process of defying the ICC.”

Wandayi had earlier threatened to file a Motion in the House seeking to impeach the President and his deputy once the trials begin.

The Speaker of the National Assembly Justin Muturi and his Senate colleague Ekwee Ethuro are in South Africa attending the Commonwealth Parliamentary Association meeting. The meeting officially ends on Friday.

In their application in court, the National Conservative Forum want Kenyatta and Ruto blocked from travelling to The Hague to attend their trials until they finish their five-year term to avert a vacuum in governance and imbalance of power.

“The court should issue a declaration that when the President and the Deputy President are out of the country at the same time, there shall be a vacuum in governance on the part of the executive and this shall occasion an imbalance in power in the country,” the Forum submitted through Khaminwa.

They argued that in the event that both the President and his Deputy were out of the country, it would be difficult to run the affairs of the country. The petitioners urged the court to issue a declaration that they attend The Hague trials at the end of their term.

This emerged on a day reports indicated yet another witness in the Ruto case claimed that he was arrested and jailed for one year after he declined to sign a witness statement prepared for him by the ICC.

The trial in the first case involving Ruto and Joshua arap Sang’ begins on Tuesday. President Kenyatta’s trial begins on November 12. Ruto’s trial will be long drawn with the prosecution expected to take approximately seven months to prosecute its case.

“On the basis of 4.5 hours of daily sitting, the prosecution case is expected to be completed within approximately 131 hearing days, which equates to approximately seven months,” stated an ICC document.

The defence is expected to take up equal time to rebut the prosecution’s evidence and the prosecution more time to re-examine witnesses.

The decision to recall the House sparked a fresh row between Jubilee and Cord coalitions.

“The reasons given to recall MPs do not satisfy the requirements of Standing Orders 29(1) and 29(2) because when we went on recess we knew the ICC matters were there. What is the urgency now?” Wandayi posed. The MP said it will not be enough to repeal the International Crimes Act, but that also, Article 2 of the Constitution will need to be amended so that whatever international obligations Kenya has signed, are also rendered null and void.

Pulling kenya out

“Let the accused persons face the ICC and defend themselves there. Hiding behind Parliament to defy the ICC will certainly backfire on Kenya,” Wandayi added.

But former Justice Minister William Cheptumo said only MPs were well-placed to make a determination on the ICC issue. “When the Kenyan population wants to express its views on any matter, this can be done through its representatives in the national assembly,” Cheptumo said.

Such a motion is not new, because, in the 10th Parliament, MPs approved a motion calling on the government to begin the process of pulling Kenya out of the ICC.