From: Ouko joachim omolo
The News Dispatch with Omolo Beste
THURSDAY, SEPTEMBER 5, 2013

Last evening I spent much of my time following the debate on my Facebook account concerning Jubilee MPs recalling parliament to withdraw Kenya out of the International Criminal Court, in advance of a crimes-against-humanity trial of the deputy president, William Ruto due on September 10, 2013. This is after the efforts by the African Union to have the ICC cases returned to Kenya or Arusha, Tanzania failed.

Facebook fans were debating whether the motion which is to be debated today afternoon will succeed to withdraw Kenya from Rome statute. No doubt for sure that Jubilee will pass the motion to withdraw it because it has the number. But will it solve the criminal cases against Uhuru and Ruto?

One fact that cannot be denied is that, even if CORD will oppose a bill as it has expressed, Jubilee will still win. The bill is being fronted by leader of majority in parliament Adan Duale that seeks to have Kenya withdrawal from the Rome Statute.

It is true that what matters in Kenya is the number not whether leaders elected are for the benefit of Kenyans or not. Uhuru won the election because he had 4 million votes from Gekuyu, Embu and Meru (GEMA) together with Ruto’s Kalenjin tribesmen 2 million that made it to 6 million.

These two tribes still voted for Uhuru despite the fact that they were warned not to vote him because of the ICC cases Uhuru and Ruto had. They were even warned that should Uhuru be elected life of common citizen would suffer a great deal because prices of essential commodities would shoot up because part of this money would be used for their cases.

Currently milk farmers are already crying foul because the price of a packet of milk which used to be Ksh 45 is now sold at Ksh 55. It means farmers will not benefit from their milk.

Fuel is up, which means the transport of public vehicles will hike the fare. Unga has shot up- electricity is up, just mention a few. This affects all Kenyans, including the tribes that voted Uhuru as a bloc.

Ruto’s trial at the ICC is expected to begin on September10 and he is expected to be out of the country for three weeks after his attempt to have a two-week interval hearings failed after the judges rejected the application.

President Uhuru kenya’s trial is expected to start November 12 and continue for weeks, even though ICC has scheduled Friday this week (tomorrow) for a status conference to discuss Uhuru’s request to be present through his trial that kicks off on November 12 via video link.

The good news is that a planned parliamentary vote on withdrawal from the Rome Statute of the ICC will do nothing to affect the upcoming trials of Ruto and Uhuru. This is according to the Coalition for the ICC.

William Pace, convenor of the Coalition for the ICC said this week that Kenya gains no legal advantage by withdrawing from the ICC. The Rome Statute makes quite clear that obligations related to existing investigations continue even in the event of a withdrawal.

Under the rules set forth in the Rome Statute, withdrawal would not technically occur for one year. Civil society from around Africa has spoken strongly against withdrawal.

Uhuru and Ruto cases at The Hague is not Kenyan case, that is why the act by the Kenyan government to withdraw its membership from the Rome Statute and the ICC is only a move to protect individuals within Kenya but not the 600,000 citizens who suffered from the post-election violence and today live with fresh memories, the wounds, the disappeared, the dead relatives and are waiting for justice still in vain.

Ruto is facing three counts of crimes against humanity for allegedly organising 2007-2008 post-election unrest that killed at least 1,100 people and displaced more than 600,000. The government has not considered how the victims are going to be compensated. This is because they are not interested in doing so.

Although both Kenyatta and Ruto have said they will cooperate fully with the court but deny the charges against them, the fact that they are threatening to withdraw from ICC membership is reason enough to argue that they are not cooperating.

If it was someone else, not Uhuru and Ruto, the withdrawal would have not been there. It explains further why ICC is not the interest of Kenyans as Duale wants to force it. To date, the only active front in that quest for justice is the ICC process and not the victims.

Joyce Laboso, Jubilee parliamentary deputy speaker, issued on Tuesday the order for the “special sitting of the assembly”, with parliament to meet on Thursday (today).

When Kenya Ratified the Rome Statute establishing the ICC in 2005 and domesticated it through the International Crimes Act of 2008, it follows that the Constitution cannot and will not protect a president from prosecution at the ICC or in Kenya for Crimes under the Rome statute.

The Hague-based court was set up in 2002 to try the world’s worst crimes, and countries voluntarily signed up to join. Kenya is one of those countries that signed it. Any actual withdrawal therefore, it requires the submission of a formal request to the UN, a process that would take at least a year.

Foreign ministers meeting in Addis Ababa resolved to draft proposal to urge the court to return to Kenya the cases against President Uhuru Kenyatta and Deputy President William Ruto.

The United Nations Security Council can ask for a case to be deferred for a year but does not have the authority to order the ICC to drop a case completely. However, when Ms Fatou Bensouda dropped charges against Francis Muthaura she said one of the reasons was that the government had failed to cooperate with the court.

Bensouda threatened to report Kenya to the UN Security Council if the country does not cooperate with her office. She also claims that Attorney General Githu Muigai has blocked her team from collecting evidence and accessing witnesses in a conflict that may throw a cloud over the future of the cases facing Uhuru and Ruto.

Ms Bensouda declares that there are more than six pending requests in terms of documentary evidence and access to witness which the government has either denied (the ICC) access or outrightly delayed in acting.

Should it fail to meet the ICC deadlines, she warned, she would not hesitate to seek assistance from the UN Security Council as provide for under Article 87(7) of the Rome Statute. The article allows the ICC to report state party which has refused to cooperate.

Ms Bensouda submits that the government has declined to fully cooperate with her office in the investigations, seriously limiting her ability to prove the charges facing the three and stemming from the 2007/8 post-election violence.

The Kenyan government’s proposal to withdraw from the ICC is one of such none cooperation required.

While Ruto is accused of crimes against humanity including murder, forcible population transfer, and persecution, Uhuru is accused of responsibility for rape and other inhumane acts – including forced circumcision and penile amputation – carried out by the Mungiki, a criminal gang allegedly under his control.

Fr Joachim Omolo Ouko, AJ
Tel +254 7350 14559/+254 722 623 578
E-mail omolo.ouko@gmail.com
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Real change must come from ordinary people who refuse to be taken hostage by the weapons of politicians in the face of inequality, racism and oppression, but march together towards a clear and unambiguous goal.

-Anne Montgomery, RSCJ UN Disarmament Conference, 2002