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On the ICC cases, Kenya is not a specimen for global political tests

By Fwamba NC Fwamba | November 30th 2013

Fwamba NC Fwamba
[email protected]

During the 2010 referendum, more than 67 per cent of Kenyans voted in support of the current Constitution after they were promised that contentious clauses would be reviewed when the document becomes law.

Now is a great opportunity to achieve this under the tenure of President Uhuru Kenyatta and Deputy President William Ruto, given the two leaders rallied Kenyans to two opposing sides during the referendum.

A number of provisions that do not appropriately represent the spirit of the Constitution and aspirations of Kenyans were passed.

Chapter One addresses the sovereignty of the people, supremacy and the defence of the Constitution. Article 2, which addresses the supremacy of the Constitution, is self contradictory.

While Article 2 clause 4 states  that “any law, including customary law, that is inconsistent with this constitution is void to the extent of the inconsistency and any act or omission in contravention of this Constitution is invalid”, clause 5 of the same article states that “the general rules of international law shall form part of the law of Kenya” while clause 6 states that “any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution”.

The provisions for the supremacy of the Constitution imply that even international law provisions and treaties that violate or undermine the essential provisions of the Constitution of Kenya are void.

In general terms, article 143 of the Constitution prohibits and protects the president or a person performing the functions of that office from prosecution during their tenure in office.

However, clause 4 of the same article, which states that “the immunity of the president under this article shall not extend to a crime for which the president may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity” undermines the spirit and purpose of article 2 clause 4 that addresses the supremacy of the Constitution.

It’s contradictory for the Constitution to claim supremacy against any other law but yield to undefined international treaties that go against it.

The spirit of the Constitution provides that the president enjoys immunity from prosecution while in office and on the basis of the supremacy of the Constitution, any international law or treaty that supports prosecution of the head of state or any person performing the functions of that office is invalid.

Both the International Criminal Court and the law that establishes it fails to recognise the immunity of a head of state from prosecution, making the Rome Statute inconsistent with the Constitution of Kenya’s provisions in article 143 clauses 1,2 and 3.

The drafters of our Constitution were awake to the fact that subjecting a sitting president to a judicial process will put the country to ridicule and the presidency to shame.

It beats logic that while we’ll not put the Office of the President to ridicule locally, we’ll allow the same shame to be conspicuous on the international stage.

This informs the position that clause 4 of article 143 was sneaked in by some unseen hand and must have been an after-thought by some interested parties to render article 143 meaningless in protecting the president from prosecution.

Some countries that prefect the United Nations Security Council are themselves not parties to the Rome Statute. No civilised country can allow its sitting president to face trial anywhere. Why should we be used as specimen for political experiments by the super powers?

In principle, the Constitution does not support prosecution of its president.

 It is important for the international community to recognise this fact and re-examine their stand on the deferral of the Kenyan cases at The Hague in recognition of article 143 clause 1, 2 and 3 of the Constitution of Kenya or support unconditional termination of the cases to help fast track the reconciliation process between Kenyan communities.

This should happen concurrently with the Parliament initiating the process of amending clause 4 of article 143 because it’s contradictory to the purpose of the provisions on sovereignty and supremacy of the Constitution of Kenya.



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