Comments on any court proceedings both locally or internationally are prohibited by the principle of sub-judice (they are under judicial consideration and therefore prohibited from public discussion elsewhere) and can lead to warrants of arrest, legal experts have warned.
International Criminal Court (ICC) Judge Chile Eboe-Osuji had warned Kenya politicians against commenting on the case against Deputy President Willam Ruto and his co-accused Joshua Sang.
But in defiance, Jubilee legislators led by Senate Majority Leader Kithure Kindiki and his National Assembly counterpart Aden Duale went on to criticise Justice Osuji for his order.
Former Committee of Experts on Constitution Review Chairman Nzamba Kitonga explained that the law is clear on commenting on an issue that is before a court of law.
Newspaper reports
“The court can summon the suspects to ask them to show cause why they should not be charged with contempt,” he said. Speaking to The Standard yesterday, Mr Kitonga said the ICC may or may not issue summons, adding that for it to issue summons, there must be investigations into the remarks made by politicians.
“ICC will not rely on newspaper reports before issuing a summons. It will have to investigate and establish which individual said what about the case and the court,” he added. Chile Eboe-Osuji is the presiding judge in the ICC case against Mr Ruto and Mr Sang.
But Mombasa Senator Hassan Omar believes that the Jubilee legislators are making matters worse for the DP, adding that any attempt to discredit the court and its judges will have consequences.
“It’s unfortunate that those in the forefront are lawyers. Any evidence should be presented to the court and it will be contested there and not in prayer rallies,” Mr Omar, a lawyer by profession, said.
He noted that the statement by Justice Osuji was meant to state the position of the court that individuals should not discuss the merits and demerits of any matter before the court since it would prejudice the outcome of the case.
“The ICC is an extension of our court system by virtue of signing the Rome Statute. If you defy a court order in Kenya, you will be charged with contempt of court,” he said.
Troublesome marriage
Ugunja MP Opiyo Wandayi, also a lawyer, called on President Uhuru Kenyatta to stop the prayer rallies.
“This is purely a TNA (The National Alliance) plot to set Ruto against the ICC. It will simply complicate matters for him,” Mr Wandayi said.
Bungoma Senator Moses Wetang’ula on Saturday claimed that the Jubilee government orchestrated the ‘Ruto fixing’ debate to salvage what he described as “a troublesome marriage” between TNA and United Republican Party.
“These ICC prayers are pushing Ruto into deeper trouble. He should rethink his welcome in this troublesome marriage,” the Senate minority leader said.
The experts’ warning comes after defiant Jubilee leaders displayed their open contempt for The Hague-based court with a public declaration that they would not be gagged from discussing the Kenyan cases.
The ruling coalition’s leaders had on Sunday continued with the prayer meetings that have irritated ICC judges. And in what they described as the Suswa Declaration, the Jubilee leaders vowed to resist “any form of dictatorship from any quarter, including the ICC”.
On Friday, Judge Chile Eboe-Osuji stated that the court was not impressed by the clamour to influence the outcome of the cases following a flurry of prayer meetings that are a platform to disparage the ICC.
