Parallel trial of William Ruto and Joshua arap Sang may boomerang

The ongoing parallel trial in Kenya of Deputy President William Ruto and radio journalist Joshua arap Sang at public rallies and prayer meetings should stop now. It has already occasioned great damage to the rule of law in this country and internationally.

It has also caused embarrassment. It underestimates the intelligence of Kenyans who witnessed the 2007-2008 violence. It depicts Kenya as a nation that pays lip service to treaties it has ratified.

It is based on a wrong estimate of the strength and the influence of the Kenyan nation in the community of nations. Some of those involved in the campaign might find themselves charged with contempt of court by the ICC after the trial is concluded.

Currently, the ICC is trying lawyers Jean-Jacques Mangenda and Aimé Kilolo Musamba against whom warrants of arrest were issued on November 10, 2013, shortly after the defence finished giving evidence. They acted for Jean Pierre Bemba Gombo. The latter has been tried on two counts of crimes against humanity and war crimes. Judgement has been reserved.

After the trial was completed, the court embarked on the trial of those who are suspected of having committed contempt of court, which is defined by Article 70 of the Rome Statute. The two lawyers were charged with offences against the administration of justice, taking the forms of presenting evidence that they knew was false — presenting false or forged documents to the court in the case and corruptly influencing by bribing witnesses and coaching them to provide false testimony in the case.

The parallel trial in Kenya is not an exercise in freedom of expression it is claimed to be. In democracies, the law of contempt establishes the bounds of the freedom of expression.

Article 10 of the Constitution, which describes the national values which bind all State organs, State officers and public officers states that one of these values is adherence to rule of law and democracy.

Article 70 (e) of the Rome Statute of the International Criminal Court provides that the court shall have jurisdiction over, among other offences, going against the administration of justice when committed intentionally and "retaliating against an official of the court on account of duties performed by that or another official".

The trial is a retaliation to the decision of the court in August, this year, to rely on retracted statements.

The other offences, under that Article against the administration of justice, include giving false testimony, presenting evidence that the party knows is false or forged, corruptly influencing a witness, obstructing or interfering with the attendance or testimony of a witness, retaliating against a witness for giving testimony or destroying, tampering with or interfering with the collection of evidence, impeding, intimidating or corruptly influencing an official of the court for the purpose of forcing or persuading the official not to perform or perform improperly his or her official duties and soliciting or accepting a bribe.

Kenya has subscribed to the Rome Statute. That statute is a treaty, which Kenya and other states have ratified.

Article 2(5) of the Constitution provides that any treaty or convention ratified by Kenya shall form part of the law of Kenya under the Constitution. The Rome Statute is a part of Kenyan law.

Through their six-point statement issued at Suswa on Sunday, more than 200 Jubilee leaders engaged in three tasks.

The first one was to try, through their debate, the cases against Ruto and Sang. They claimed that the two were allegedly 'fixed' and purported to offer evidence in support of the alleged fixing.

The second one was of accusing the court of allegedly manipulating the procedure and evidence so that it may convict the two accused. In essence, the leaders accused the judges of alleged want of integrity and impartiality. Judge Chile Eboe-Osuji was accused of being an "applicant, a prosecutor and judge at the same time".

The third one was both to intimidate and insult the court. Speaking as alleged spokespersons of all Kenyans, the leaders stated that "for avoidance of doubt, we the people of Kenya wish to state that we are a sovereign democratic and independent nation founded on the principles of rules of law, respect for human rights and constitutionalism and that we now do and will resist at all costs by all means and at all times, any form of dictatorship from any quarter including the ICC".

The object of the Kenya trial through debates at rallies or prayer meetings has been made clear. It is to secure the acquittal of the accused.

The participants in the rallies are representing the accused. The court is the Kenyan public. In The Hague, the court is made up of three judges who are assisted by the prosecution and the defence. The prosecution is not represented at the rallies or prayer meetings.

What Lord Ellenbrough said of a trial conducted through the media at rallies applies to the ongoing Kenyan trial. He said: "If anything is more important than another in the administration of justice, it is that jurymen should come to the trial of those persons on whose guilt or innocence they are to decide with minds pure and unprejudiced. Is it possible they should do so after having read for weeks and months before ex-parte statements of the evidence against the accused, which the latter had no opportunity to disprove or controvert?"

A trial conducted in the Kenyan way will not be accepted by the world as a fair one or one in accordance with the Rome Statute. As the European Court of Justice observed in Faccni Dori vs Recrebsrl, when a court is determining whether or not a State has complied with the provisions of a treaty, it looks at the public institutions of the State. It stated that "the concept of State has to be understood in the broad sense. The broad definition covers local or regional authorities, public authorities and bodies coming under the state even in the form of nationalized undertakings."

As seen above, at Suswa, the State was represented by members of the National Assembly, members of the Senate, governors and the members of county assemblies. It is clear then that Article 70 of the Rome Statute was contravened by Kenya on Sunday. It has also been contravened on previous occasions.

The claim in the six-point statement that its authors were speaking on behalf of Kenyans is false because of two reasons. The first reason is that Kenyans speak through an organ when it operates as provided by the Constitution.

The second reason is that in a country where the Constitution is the supreme law, Parliament is not supreme. It is the people who are supreme. Collectively, they speak through a referendum or a constitution-ratifying convention. MPs have not woken up to the reality that we do not have a parliamentary system of government where the Parliament claims to be supreme and practices elective dictatorship at times.